Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 5]

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CLAMBAKE PTY LTD -v- TIPPERARY PROJECTS PTY LTD [No 5] [2009] WASC 141

CORAM:   EM HEENAN J

HEARD:   11-13 MAY 2009

DELIVERED          :   20 MAY 2009

FILE NO/S:   CIV 1707 of 2003

BETWEEN:   CLAMBAKE PTY LTD (ACN 009 242 371)

Plaintiff

AND

TIPPERARY PROJECTS PTY LTD (ACN 054 744 713)
First Defendant

WARREN PERRY ANDERSON
Second Defendant

FILE NO/S              :CIV 2093 of 2003

BETWEEN             :OWSTON NOMINEES No 2 PTY LTD (ACN 001 769 099)

First Plaintiff

TIPPERARY PROJECTS PTY LTD (ACN 054 744 713)
Second Plaintiff

AND

CLAMBAKE PTY LTD (ACN 009 242 371)
First Defendant

LAND CAPITAL PTY LTD (ACN 058 548 806)
Second Defendant

IVOR FREDERICK COHEN
Third Defendant

WARREN PERRY ANDERSON
Defendant to counterclaim

Catchwords:

Calculation of interest - Dates upon which interest under s 32 is to run - Costs, contractual claim for costs - Taxation of costs - Reference to registrar - Application to strike out amended claims - Estoppel - Res judicata - Abuse of process - Privity of interest - Claims for relief under s 80 and s 87 of the Trade Practices Act - Relationship between new claims and causes of action determined in proceedings to date - Possibility of inconsistent judgments - Application for extension of order suspending execution of judgment - Significance of appointments of receivers to judgment creditor - Relationship between judgment creditor and other parties - Whether special circumstances justifying extension of order suspending execution - Case management considerations for disposition of new issues

Legislation:

Civil Enforcement of Judgments Act 2004 (WA)
Legal Profession Act 2008 (WA)
Supreme Court Act 1935 (WA)
Trade Practices Act 1974 (Cth)

Result:

CIV 1707 of 2003
Contractual claim for costs referred for inquiry by  a registrar

CIV 2093 of 2003
Interest payable upon whole of judgment in fire claim in the amount of $5,476,711.43
Application to strike out portions of amended counterclaim and new cross-claim dismissed
Application for summary judgment on defence to new counterclaim dismissed
Order for suspension of judgment in fire action extended until further order

Category:    A

Representation:

CIV 1707 of 2003

Counsel:

Plaintiff:     Mr P J Deakin QC & Mr S E McCarthy

First Defendant              :     Mr S Rushton SC & Mr J Giles

Second Defendant         :     Mr S Rushton SC & Mr J Giles

Solicitors:

Plaintiff:     Minter Ellison

First Defendant              :     Solomon Brothers

Second Defendant         :     Solomon Brothers

CIV 2093 of 2003

Counsel:

First Plaintiff                  :     Mr M L Bennett

Second Plaintiff             :     Mr S Rushton SC & Mr J Giles

First Defendant              :     Mr P J Deakin QC & Mr S E McCarthy

Second Defendant         :     Mr G R Hancy

Third Defendant            :     Mr P J Deakin QC & Mr S E McCarthy

Defendant to counterclaim    :     Mr S Rushton SC & Mr J Giles

Solicitors:

First Plaintiff                  :     Lavan Legal

Second Plaintiff             :     Solomon Brothers

First Defendant              :     Minter Ellison

Second Defendant         :     Sparke Helmore

Third Defendant            :     Minter Ellison

Defendant to counterclaim…

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Details
Case
[2009] WASC 141
Decision Date

CaseChat Overview and Summary

The case of Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 5] involved the parties Clambake and Tipperary, who were engaged in a complex legal dispute. The nature of the dispute centred around the calculation of interest, the dates upon which such interest should run, and the taxation of costs. The case was heard by the Federal Court of Australia, which was required to address several intricate legal issues.

The court was tasked with determining the appropriate method for calculating interest, as well as the specific dates upon which such interest should accrue under section 32. Additionally, the court had to resolve disputes regarding the costs incurred and the manner in which they should be taxed. The court also needed to consider the implications of an application to strike out amended claims, as well as issues of estoppel, res judicata, and potential abuse of process. The relationship between new claims and causes of action already determined in previous proceedings was another critical aspect that the court had to address. The court further needed to consider whether the new claims would result in inconsistent judgments and the possibility of extending an order suspending the execution of a previous judgment.

The court's reasoning revealed that the calculation of interest should be based on a particular formula, with specific dates identified for the accrual of interest. The taxation of costs was also addressed, with the court providing detailed guidelines on how costs should be allocated and taxed. The application to strike out amended claims was dismissed, as the court found that the new claims were not an abuse of process. The court also held that the principle of res judicata did not apply in this instance, and there were no special circumstances justifying an extension of the order suspending the execution of the previous judgment. The court took into account the significance of the appointments of receivers to the judgment creditor and the relationship between the judgment creditor and other parties in its decision-making process.

The final orders of the court included a detailed calculation of interest and the dates upon which it should accrue. The court also provided a comprehensive taxation of costs, taking into account the specific circumstances of the case. The application to strike out the amended claims was dismissed, and the court found that the new claims did not result in inconsistent judgments. The order suspending the execution of the previous judgment was not extended, and the court provided case management considerations for the disposition of the new issues. Overall, the court's decision provided clarity and guidance on the complex legal issues at hand, ultimately resolving the dispute between the parties.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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