Callander v Ladang Jalong (Australia) Pty Ltd
[2005] WASC 159 (S)
CALLANDER -v- LADANG JALONG (AUSTRALIA) PTY LTD & ORS [2005] WASC 159 (S)
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| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 159 (S) | |
| Case No: | CIV:1037/2000 | 2 - 6 AUGUST 2004 & 10 - 16 FEBRUARY 2005, 20 JULY 2005 | |
| Coram: | MCKECHNIE J | 20/07/05 | |
| 16/09/05 | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Order for indemnity costs | ||
| B | |||
| PDF Version |
| Parties: | WILLIAM JOHN CALLANDER LADANG JALONG (AUSTRALIA) PTY LTD ZAINAL ABIDIN BIN MOHAMED ISA AHMED TERMIZI KASSIM BODIN ISMAIL SHAH CHEW TEN TOH |
Catchwords: | Costs after trial Order 24A offer not accepted Whether indemnity costs should be ordered |
Legislation: | Nil |
Case References: | Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 West v Jackson McDonald (a firm) [2001] WASC 198 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 16 SEPTEMBER 2005 FILE NO/S : CIV 1037 of 2000 BETWEEN : WILLIAM JOHN CALLANDER
- Plaintiff
AND
LADANG JALONG (AUSTRALIA) PTY LTD
First Defendant
ZAINAL ABIDIN BIN MOHAMED ISA
Second Defendant
AHMED TERMIZI KASSIM
Third Defendant
BODIN ISMAIL SHAH
Fourth Defendant
CHEW TEN TOH
Fifth Defendant
(Page 2)
Catchwords:
Costs after trial - Order 24A offer not accepted - Whether indemnity costs should be ordered
Legislation:
Nil
Result:
Order for indemnity costs
Category: B
Representation:
Counsel:
Plaintiff : Ms P M V Edward
First Defendant : Mr K E Yin
Second Defendant : Mr K E Yin
Third Defendant : Mr K E Yin
Fourth Defendant : Mr K E Yin
Fifth Defendant : Mr K E Yin
Solicitors:
Plaintiff : Verschuer Edward
First Defendant : David Taylor
Second Defendant : David Taylor
Third Defendant : David Taylor
Fourth Defendant : David Taylor
Fifth Defendant : David Taylor
(Page 3)
Case(s) referred to in judgment(s):
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
West v Jackson McDonald (a firm) [2001] WASC 198
Case(s) also cited:
Nil
(Page 4)
1 MCKECHNIE J: On 20 July 2005 I ordered:
"1. There be judgment on the plaintiff's claim against the first defendant for damages in the sum of $160,360.00 together with interest thereon at the rate of 6% per annum from 13 January 2000 to the date of judgment.
2. There be judgment on the plaintiff's claim against the second defendant to the extent that the second defendant is jointly and severally liable with the first defendant for the payment of $94,260.00 of the $160,360.00 damages for which the first defendant is liable together with interest thereon at the rate of 6% per annum from 13 January 2000 to the date of judgment.
3. The plaintiff's claim against the third, fourth and fifth defendants be dismissed."
2 The issue of costs was adjourned for written submissions to be provided.
3 The plaintiff seeks orders on costs as particularised in a draft minute. The plaintiff seeks an order for indemnity costs or, alternatively, a special costs order.
The delay
4 This action was considerably delayed in coming before the Court. In August 2001 the defendants submitted that the trial could not be listed in November and December 2001 because the second, third and fourth defendants were Muslin and were not available because they fasted during those months. This was a reasonable request and I draw no adverse inference against the defendants because of it. It does show, however, that the plaintiff was not at fault for the non-listing.
The Local Court proceedings: John Wolf v Ladang Jalong (Australia) Pty Ltd, Perth Local Court No 14355/2001
5 There were Local Court proceedings brought by Mr Wolf against the defendants generally. The plaintiff (Wolf) was successful.
6 The defence in the present proceedings argues that there was such a concatenation of facts between those proceedings and the present proceedings that the Supreme Court proceedings should be categorised as an abuse of process: see West v Jackson McDonald (a firm) [2001]
(Page 5)
- WASC 198. I am unable to agree. True it is that there was a significant overlap on some issues. My finding dismissed the case against three of the defendants. I do not consider that it was an abuse of process to continue the Supreme Court proceedings. However, the Local Court proceedings are relevant in two ways.
7 In February 2002 the defendants sought not to have this matter listed because of the issues common to the proceedings in the Local Court action.
8 Again, while this might have been a reasonable attitude to take, the consequence of the delay cannot be visited upon the plaintiff.
9 The second point of relevance is that the Magistrate made certain findings. Crucially, there was a finding that no premium was paid by LJA and that the shareholders' agreement did not come into effect. Following the Local Court action, a Notice to Admit Facts was served upon the defendants. Included in the notice were those two facts which had not been challenged by way of appeal from the Magistrate. In the circumstances, the failure to admit the facts by LJA and Zainal was unreasonable and lengthened the trial.
10 The trial was listed for 2 – 6 August 2004. It failed to conclude in that time and the original listing was plainly inadequate. The trial then proceeded on 10 – 16 February 2005. I regard the parties as equally at fault in failing to properly estimate the length of the trial.
11 As to the trial itself, clearly the plaintiff succeeded against LJA for the full amount of the judgment and against Zainal for that part for which Zainal was responsible. The plaintiff failed against Termizi, Ismail and Annie Toh. The defendants suggests, somewhat cheekily, that "one neat way to deal with the overall issue of costs would be to make an order … 'the first and second defendants pay one third (or such proportion as this Court sees fit but not the entire amount) of the plaintiff's taxed costs if not agreed, on the District Court scale'." Leaving aside the reference to the "District Court scale", I am firmly of the view that such an order would not do justice. The plaintiff is entitled to costs in full against the two defendants in the successful action. The three defendants who resisted the claim are entitled to their taxed costs from the plaintiff. Of course, when such a result occurs, the taxation of costs requires some care to differentiate between the various parties. Taxing officers regularly undertake such an exercise and complexity is no reason to change the usual position.
(Page 6)
12 The plaintiff was not unduly tardy in prosecuting his case. Nor did the plaintiff's actions as against LJA and Zainal substantially increase the costs, especially as LJA and Zainal had it within their power to admit facts. The fact that the plaintiff was unsuccessful in some aspects of his claim against LJA and Zainal is neither here nor there: the plaintiff must be classified as being generally successful.
Offers of compromise under Order 24A
13 There has been a history of offers on either side. An important offer, however, was one made on 16 August 2000 where the plaintiff made an offer of compromise in the action as follows:
"(a) Your client pay my client the sum of $120,000.00.
(b) Your client pay all outstanding taxation liability with respect to my client's wages for the period of his employment.
(c) Your client return to my client all his plant and equipment as previously requested.
(d) All actions be discontinued between your client and my client with each party bearing their own costs."
14 Such a compromise, if accepted, would have disposed of the matters in issue between the parties for a sum less than judgment which was ultimately obtained. The offer was rejected summarily by letter of 21 August 2000.
15 On 29 October 2002 the plaintiff's solicitors wrote to the defendants' then solicitors following the findings in the Local Court proceedings "to invite a further and commercially realistic offer of settlement of the Supreme Court proceedings". A further invitation was made by letter dated 24 February 2003 to the defendants' then solicitors. On 8 July 2003 the plaintiff served the Notice to Admit Facts.
16 On 8 September 2003 the defendants made an offer of compromise under O 24A "on the basis that the First Defendant pay the Plaintiff the sum of $100,000 in full and final settlement of the action". That offer was not accepted although a counter-offer was made on 9 September 2003.
(Page 7)
17 On 20 December 2004 the first defendant made a further offer as follows:
"Wages $93,000.00
Retention $36,000.00
Interest $38,000.00
Costs $55,000.00
$222,000.00"
18 The timing of this offer is significant. It occurred sometime after the action had been adjourned in August 2004 and before the action was due to resume in February 2005. The offer was rejected on 23 December 2004 because, inter alia, no allowance had been made for the reimbursement of the sum of $6188.99. This is an amount I allowed in judgment. In the offer no allowance was made for hire charges. I allowed the sum of $30,000. It was also said that the offer in respect of costs was patently inadequate and a draft bill was included. A counter-offer was made by the plaintiff in the sum of $350,000 inclusive of costs.
19 On 1 February 2005, that is, shortly before the resumed trial, a further Notice of Offer was made by the first defendant as follows:
"1. Paragraph 32, wages claim of $93,336.94
2. Paragraph 17, expenditures claim of $6,188.99
3. Paragraph 18, retention of goods claim of $36,101.68
4. Interest
5. Costs to be taxed"
20 The plaintiff in turn made a counter-offer on 2 February 2005. The effective difference between this and the defendants' offer was the inclusion of the claim for hire of plant and equipment at $30,000.
The principles
21 The plaintiff made a number of offers and particularly in relation to the offer of 16 August 2000 obtained judgment which was no less favourable than the terms of the offer.
(Page 8)
22 In respect of the defendants' offers, the plaintiff has obtained judgment in terms more favourable than the offers. In those circumstances, O 24A r 10(4) provides that:
"Unless the court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim from the date on which the offer was made, taxed on an indemnity basis in addition to his costs incurred before that date, taxed on a party and party basis."
23 The plaintiff's offer of 2 February 2005 may, when compared with the end result, have little if any notion of compromise within it. However, the plaintiff's offer of 16 August 2000 was a very reasonable and genuine attempt at an early stage to compromise the action. The principles are conveniently set out in Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 per the Court at 724. Notwithstanding the terms of O 24A, of course, the Court retains a general discretion to make appropriate orders as to costs.
24 In my judgment, this is a case where indemnity costs ought to be awarded from the date of rejection of the plaintiff's offer of 16 August 2000, namely, 21 August 2000. The offer was a reasonable offer and, if accepted, would have saved all parties, but especially the plaintiff, a very considerable burden of costs in pursuing his claim for the next 5 years. It was an offer plainly in the spirit of compromise. Moreover, after the considerable setbacks to the defendants' position occasioned by the judgment of John Wolf v Ladang Jalong (Australia) Pty Ltd, Perth Local Court, No 14355/2001, the plaintiff invited the defendants to further consider their position and make a realistic offer. In the end, no offer by the defendants matched the judgment.
Special costs
25 The plaintiff sought, as an alternative, a special costs order. In view of my decision to make an order for indemnity costs this application need not be decided.
Orders
26 I make the following orders:
1. The first and second defendants pay the plaintiff's costs of the action to be taxed other than the costs incurred by reason of the plaintiff's claims against the third, fourth and
(Page 9)
- fifth defendants such costs to include costs reserved in respect of:
- (a) The plaintiff's application of 28 December 2000 for leave to issue the writ;
(b) The plaintiff's application of 23 July 2003 to strike out the defences;
(c) The plaintiff's application of 17 February 2004 to file a substituted statement of claim;
(d) A certificate for the transcript of the proceedings and for Perth Local Court proceedings No. 14355 of 2001, John Wolf v Ladang Jalong (Australia) Pty Ltd."
2. The first defendant's counterclaim against the plaintiff is dismissed and the first defendant pay the plaintiff's costs of defending the same to be taxed.
3. The plaintiff's costs of his claim and the first defendant's counterclaim be taxed and paid on a party and party basis to 21 August 2000 and thereafter on an indemnity basis.
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