CHAPPELL -v- GOLDSPAN INVESTMENTS PTY LTD [No 3] [2015] WASC 277 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 277 (S) | |
| Case No: | CIV:1597/2014 | ON THE PAPERS | |
| Coram: | ALLANSON J | 8/03/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff to pay the defendants' costs of the application in part | ||
| B | |||
| PDF Version |
| Parties: | PAULA SUSAN CHAPPELL IN HER CAPACITY AS THE LEGAL PERSONAL REPRESENTATIVE OF THE ESTATE OF ROBERT HASTINGS HITCHCOCK GOLDSPAN INVESTMENTS PTY LTD KEVIN ROBINSON NEIL ROBINSON PETER ROBERT HALLAM |
Catchwords: | Practice and procedure Costs Costs of strike out application where party successful in part Turns on own facts |
Legislation: | Supreme Court Act 1935 (WA), s 37(1) Supreme Court Rules 1971 (WA), O 1 r 4B, O 14 r 8(1), O 66 r 1(1), (3) |
Case References: | Amaca Pty Ltd v Moss [2007] WASCA 162 (S) Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, Library No 920347, 19 June 1992) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
GOLDSPAN INVESTMENTS PTY LTD
First Defendant
KEVIN ROBINSON
Second Defendant
NEIL ROBINSON
Third Defendant
PETER ROBERT HALLAM
Fourth Defendant
Catchwords:
Practice and procedure - Costs - Costs of strike out application where party successful in part - Turns on own facts
Legislation:
Supreme Court Act 1935 (WA), s 37(1)
Supreme Court Rules 1971 (WA), O 1 r 4B, O 14 r 8(1), O 66 r 1(1), (3)
Result:
Plaintiff to pay the defendants' costs of the application in part
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiff : Solomon Brothers
First Defendant : Russells
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : Russells
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Moss [2007] WASCA 162 (S)
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261
Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, Library No 920347, 19 June 1992)
1 ALLANSON J: On 4 August 2015, I gave reasons in an application by the first and fourth defendants for summary judgment, alternatively to strike out the statement of claim against them.
2 The matter is reasonably involved because the plaintiff's claim is in causes of action for breach of contract, breach of fiduciary duty, and contravention of consumer laws, and is also against multiple defendants. The defendants brought, but did not pursue, an application for summary judgment based on a deed of release. They did maintain an application for summary judgment based on the statement of claim failing to disclose a reasonable cause or causes of action.
3 The defendants only abandoned the application for the summary judgment based on the deed of release at the hearing, and the plaintiff (and the defendants) had prepared written submissions on the issue.
4 On the matters that did proceed, the plaintiff made some concessions. The statement of claim was struck out in part. I held that, on those matters where I had struck out the plea, it was not an appropriate case to enter judgment, but would give leave to the plaintiff to re-plead.
5 The matter has not progressed following the hearing of the strike out application while the plaintiff's representatives have been taking steps to appoint a personal representative in Western Australia, following the death of Mr Hitchcock in the United States of America. The question of costs of an earlier proceeding to discharge an ex parte freezing order has also awaited the substitution of a plaintiff.
6 Those steps have now been completed and the proceedings continue in the name of Mr Hitchcock's personal representative in Western Australia.
Principles
7 Costs of and incidental to all proceedings in court are in the discretion of the court: Supreme Court Act 1935 (WA) s 37(1). The discretion must be exercised judicially. The Supreme Court Rules 1971 (WA) in O 66 r 1 (1), state the general rule that costs go to the successful party. There are many qualifications to that general rule. Where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs the Court may order such party to pay the costs of such issue or issues: O 66 r 1(3).
8 Where there is a mixed outcome, the apportionment of costs is very much a matter of impression and broad evaluation. Mathematical precision is illusory: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261; Amaca Pty Ltd v Moss [2007] WASCA 162 (S) [6].
9 A further relevant qualification to costs going to the successful party is the 'general rule' relating to costs on an application for summary judgment. The usual order where an application for summary judgment is dismissed is that the costs of the application be costs in the cause, except where the party applying for judgment is aware or should be aware that the application is hopeless and that it has no prospect of succeeding: see O 14 r 8(1); Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, Library No 920347, 19 June 1992), 2 - 4 (Ipp J); Dal Pont, The Law of Costs (3rd ed, 2013) 441-2 [14.25].
Consideration
10 Each party submits that it was substantially successful. Breaking the matter down:
1. The plaintiff was successful to the extent that the defendants did not proceed on the application for summary judgment based on the deed of release.
2. The 'contract claim' was struck out against each defendant.
3. The 'breach of fiduciary duty claim' was struck out against Mr Hallam only, and not against Goldspan.
4. The 'Consumer Law claim' was struck out in part only.
5. Summary judgment was not ordered on those claims where the plea was struck out, but the plaintiff was given leave to re-plead.
11 Even on that summary, it is apparent that the defendants were the substantially successful party. In practical terms, the plaintiff must re-plead the cause of action on all but the claim for unconscionable conduct before the matter can proceed.
12 On the findings made in the application, while summary judgment was refused the application could not properly be described as one the defendants knew was without prospects of success. Having regard to the principle of proportionality, it would in my opinion be a poor use of the court's and the parties' resources to make an order for costs in the cause of that part of the application only. The more practical course is to take into account the fact that there was such an application and the time devoted to it in determining the proportion of the total costs that I think should be awarded, but otherwise to make no order as to costs on the application for summary judgment.
13 I am satisfied that the defendants should not have all of the costs of the application where the 'fiduciary duty claim' against Goldspan and one of the two 'Consumer Law' claims were not struck out. I also take into account that Mr Hallam is the sole director and sole shareholder of Goldspan and the two defendants have been jointly represented.
14 Considering the matter as a whole, the defendants should have an order for costs but only for part of the costs of the application. The defendants submit that an order that the plaintiff pay 70% of their costs would be the proper order. It is impossible to be more precise than that, and the defendants' submission accords with my impression of the relative success of the parties by reference to the substance of the issues argued.
15 When costs are awarded in an interlocutory application, the general practice is to order that they be paid forthwith. In the present case, there is a further qualifying factor: the plaintiff has been given leave to re-plead, but must file a minute of the proposed amended statement of claim. The defendants have submitted that any order as to when the costs of the strike out and summary judgment application be payable may await any further application in respect of the foreshadowed amended statement of claim. In my opinion, the submission of the defendants is the course most consistent with O 1 r 4B.
The freezing order
16 As a discrete issue, the defendants were successful in an application to discharge a freezing order made ex parte. The plaintiff should pay the costs of the application to discharge the freezing order. Those costs should be taxed, if not agreed, and payable forthwith.
Orders
17 The following orders should be made:
1. The plaintiff to pay 70% of the first and fourth defendants' costs of the application for summary judgment, alternatively to strike out the statement of claim.
2. The plaintiff to pay the first and fourth defendants' costs of the application to discharge the freezing order.
3. The costs should be taxed, if not agreed, and are payable forthwith.
- AGLC
- Chappell v Goldspan Investments Pty Ltd [No 3] [2015] WASC 277 (S)
- Case
- [2015] WASC 277 (S)
- Decision Date
CaseChat Overview and Summary
The court examined the principles of costs in litigation and the circumstances surrounding the strike-out application. It noted that the general rule is that the costs of unsuccessful applications are to follow the event. However, the court also recognised that the circumstances of each case could influence this general rule, particularly when a party has succeeded only in part. In this instance, the court found that the plaintiff's claims were largely unjustified, but the defendant had not entirely prevailed on all grounds. Therefore, the court held that the plaintiff should bear the costs of the application, but the amount should be proportionate to the defendant's partial success.
The court's decision was grounded in the need for fairness and proportionality in the allocation of costs. It acknowledged that the plaintiff's claims had been largely unfounded, which justified an award of costs to the defendant. However, the court also recognised that the defendant's success was not complete, as some claims were not struck out. Consequently, the court ordered that the plaintiff would pay the defendant's costs of the application, but the amount would be reduced to reflect the partial success achieved by the defendant. This approach aimed to balance the interests of both parties and ensure that the costs order was just and equitable in the circumstances.
Orders
Orders of the court
Plaintiff to pay the defendants' costs of the application in part
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.