Bowesco Pty Ltd v Westpoint Management Ltd [No 2]

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



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2014] WASC 207 (S)
Case No:CIV:2092/201220 JUNE 2014
Coram:CHANEY J3/07/14
7Judgment Part:1 of 1
Result: Plaintiff ordered to pay costs of the defendant and former defendant to be taxed if not agreed
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…

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Details
Case
[2014] WASC 207 (S)
Decision Date

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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