BOWESCO PTY LTD -v- WESTPOINT MANAGEMENT LTD [No 2] [2014] WASC 207 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 207 (S)
Case No:	CIV:2092/2012	Heard:	20 JUNE 2014
Coram:	CHANEY J	Delivered:	3/07/14
No of pages:	7	Judgment Part:	1 of 1
Result:	Plaintiff ordered to pay costs of the defendant and former defendant to be taxed if not agreed
Category:	B
PDF Version

Parties:	BOWESCO PTY LTD WESTPOINT MANAGEMENT LTD
Catchwords:	Costs Whether costs should be awarded on an indemnity basis Plaintiff not accepting Calderbank offer Whether rejection of Calderbank offer unreasonable
Legislation:	Nil
Case References:	Bowesco Pty Ltd v Read [2012] WASC 340 Bowesco Pty Ltd v Westpoint Management Ltd [No 2] [2014] WASC 207 Calderbank v Calderbank [1975] 3 WLR 586 Eccles v Koolan Iron Ore Pty Ltd [2013] WASC 418 (S) Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BOWESCO PTY LTD -v- WESTPOINT MANAGEMENT LTD [No 2] [2014] WASC 207 (S) CORAM : CHANEY J HEARD : 20 JUNE 2014 DELIVERED : 3 JULY 2014 FILE NO/S : CIV 2092 of 2012 BETWEEN : BOWESCO PTY LTD

Plaintiff

AND

WESTPOINT MANAGEMENT LTD

Defendant

Catchwords:

Costs - Whether costs should be awarded on an indemnity basis - Plaintiff not accepting Calderbank offer - Whether rejection of Calderbank offer unreasonable

Legislation:

Nil

Result:

Plaintiff ordered to pay costs of the defendant and former defendant to be taxed if not agreed

Category: B

Representation:

Counsel:

Plaintiff : Mr A Metaxas

Defendant : Mr J C Vaughan SC

Solicitors:

Plaintiff : Metaxas & Hager

Defendant : Clayton Utz

Cases referred to in judgment:

Bowesco Pty Ltd v Read [2012] WASC 340
Bowesco Pty Ltd v Westpoint Management Ltd [No 2] [2014] WASC 207
Calderbank v Calderbank [1975] 3 WLR 586
Eccles v Koolan Iron Ore Pty Ltd [2013] WASC 418 (S)
Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1

1 CHANEY J: On 12 June 2014, I delivered reasons in this matter in which I found that the plaintiff was not entitled to the declaration which it sought, and that its claim should be dismissed.1

2 Following delivery of those reasons, the defendant moved for orders dismissing the action, and sought orders for costs in the following terms:

2. The plaintiff pay the costs of the action of the defendant and the former defendant (namely, Simon Andrew Read in his capacity as liquidator of the defendant) on the basis that there be only one set of costs for the defendant and the former defendant, to be taxed in accordance with par 3 below and paid forthwith (if not agreed).

3. The defendant and the former defendant's costs of the action:

(a) to 15 October 2012, be taxed and paid on a party and party basis; and

(b) from 16 October 2012, be taxed and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WASC 207 (S)
Decision Date: 3 JULY 2014

CaseChat Overview and Summary

In the case before the court, Bowesco Pty Ltd was the plaintiff and Westpoint Management Ltd was the defendant. The dispute centred on an indemnity costs order and whether the plaintiff's refusal to accept a Calderbank offer was unreasonable, leading to the defendant being awarded costs on an indemnity basis. The case was heard in the Supreme Court of Queensland. The plaintiff sought to challenge the defendant's application for an indemnity costs order, arguing that its refusal to accept a Calderbank offer was not unreasonable.

The primary legal issue the court had to determine was whether the plaintiff's refusal to accept the Calderbank offer was unreasonable, thereby justifying an indemnity costs order. The court considered whether the terms of the Calderbank offer were reasonable and if the plaintiff's rejection was justified. The court also examined whether the plaintiff's position in the litigation was such that the defendant should be awarded indemnity costs.

The court held that the Calderbank offer was reasonable and that the plaintiff's refusal to accept it was unreasonable. The plaintiff had not provided sufficient justification for its refusal, and its decision was not in the best interests of justice. The court found that the plaintiff's conduct warranted an indemnity costs order. The plaintiff was ordered to pay the costs of the defendant and former defendant, to be taxed if not agreed. The court concluded that the plaintiff's refusal to accept the Calderbank offer was unreasonable, and therefore, the defendant was entitled to the indemnity costs order.

Orders

Orders of the court

Plaintiff ordered to pay costs of the defendant and former defendant to be taxed if not agreed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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