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

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

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Case Copied 20 May 2009 69 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] WASC 141
Decision Date: 20 MAY 2009

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