Cassisi, L. v C.F.C. Holdings

[1990] FCA 812

IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	)
GENERAL DIVISION	)	NO. WAG89 OF 1987
B E T W E E N :	LORENZO CASSISI AND FELICE CASSISI

Applicants

and

C.F.C. HOLDINGS PTY. LTD.

First Respondent

and

PAGANELLI ENGINEERING PTY. LTD.

Second Respondent

and

ANGEL0 PAGANELLI

Third Respondent

and

C.F.C. HOLDINGS PTY. LTD.

Cross Claimant in the

First Cross Claim

and

CENTURION TRANSPORT CO. PTY.

LTD.

Cross Respondent to the

A U S W

First Cross Claim

and

C.F.C. HOLDINGS PTY. LTD.

Cross Claimant in the

Second Cross Claim

and

RECEIVED

12 MAR 1991
E D E N COURT OF
CENTURION TRANSPORT CO. PTY.

LTD.

Cross Claimant in the

Third Cross Claim

and

PAGANELLI ENGINEERING PTY. LTD.

First Cross Respondent to
the Second and Third Cross

Claims

and

ANGEL0 PAGANELLI

Second Cross Respondent to the Second and Third Cross Claims

CORAM: LEE J.

DATE : 5 SEPTEMBER 1990

EX TEMPORE REASONS FOR DECISION ON MOTION FOR JUDGMENT

Having heard submissions as to the appropriate
orders, I propose to deal firstly with the matter of the costs

reserved upon the grant of leave to the applicants to amend

trial.	their particulars of damage prior to the commencement of the
Amendments to pleadings during the course of a hearing of a matter do, sometimes, occur and whilst they are not to be encouraged, they do not always occasion such a degree of additional cost as to warrant the making of any
order in that regard. In this case the amendments were made to particulars of damage which, by nature, are always somewhat fluid.
The question in this case is whether an appreciable amount of the respondents' time has been wasted in their preparation of an opposition or response to the applicants' claim as initially formulated. Certain tasks in that regard had to be undertaken by the respondents in any event. It was likely that the respondents would be required to obtain expert advice and assistance in assessing the merits of the claim according to the discovered material to make a due assessment on the true worth of claim.
In this case the amendments to the particulars of damage came about after delivery of the summary of the evidence of the first respondent's expert witness, indicating the response the first respondent would make to the claim for damages. The preparation of that summary was a task that had to be undertaken in any event and the applicants' amendments
number of the propositions put by the respondents' expert. in response merely reflected the applicants' acceptance of a
Issue was joined in respect of the remaining elements to which arguments were to be addressed. In part of the remainder of claim, the applicants were successful and in part they were not. However, with regard to the question of the degree of additional hearing time occasioned by the amendments, I do not know that one could say that they led to any enlargement of the period of the trial as to warrant making any particular order about it nor to costs thrown away beforehand.
That being the case, I have determined that in respect of the amended particulars of damage there be no order in respect of the reserved costs.
The remaining matter is the question of whether the first respondent is to be, in an indirect way, indemnified by the second and third respondents in respect of its liability for costs to the applicants. The applicants having been successful against all respondents and the first respondent having been successful in its cross-claim seeking indemnity against the second and third respondents for its liability under the principal claim, the question arises as to whether that right to indemnity should extend to liability for costs which, in the normal event, the first respondent would be required to bear.
I have determined that when it is all boiled down the control of the matters which led to costs being incurred really rested with the second and third respondents. They could have brought the matter to an end and saved the first respondent liability for costs had they acted in a prudent manner given the facts as I have found them. Therefore, I have determined, with some misgiving and not without some hesitation, that the first respondent should effectively be indemnified in respect of its liability to contribute to the costa by the orders I intend to make.

The orders I propose would be as follows:

On the application:

1.   The first, second and third

respondents Pay to the applicants the sum o f $91,602.01.

2.   The first respondent pay to the

applicants the sum of $10,000.

3.   The first, second and third

respondents pay the applicants' costs of the application to be taxed less the taxed costs

paid by the applicants to the ordered on 21 August 1989 to be first , second and third

respondents.

On the second cross-claim, the cross-claim
be dismissed.
On the third cross-claim:

1.   The first and second cross-

respondents indemnify the cross- claimant by paying to the applicants such amount as the first respondent is liable to pay to the applicants by virtue of the order on the application including the order that the

first respondent pay the
applicants' costs to be taxed.

2.   The first and second cross-

respondents pay the cross- claimant's costs of the cross- claim to be taxed.

I have not included liberty to apply as these orders

should finalise all matters.

I certify that the preceding

six (6) pages are a true copy of the

Reasons for Judgment of his Honour Mr Justice Lee.

Associate:

Date:

Counsel for the Applicant: MS E.H. Ferri

Solicitors for the Applicant: Robinson Cox

Counsel for the First Respondent:  Mr P. Nisbet

Solicitors for the First Respondent: Sly and Weigall

Counsel for the Second and Third Respondents: Mr P.G. McGowan Solicitors for the Second and Third Respondents: Phillips Fox

Date of Hearing:  5 September 1990

Date of Judgment: 5 September 1990