CVW Group Holdings Pty Ltd v Addison
[2011] WASC 267 (S)
CVW GROUP HOLDINGS PTY LTD -v- ADDISON [2011] WASC 267 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 267 (S) | |
| Case No: | CIV:3013/2009 | ON THE PAPERS | |
| Coram: | LE MIERE J | 9/08/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Defendants pay the plaintiff's costs of the extension of time application | ||
| B | |||
| PDF Version |
| Parties: | CVW GROUP HOLDINGS PTY LTD MARK FREDERICK ADDISON CATHRINE LINDA BURKE BURKE ADDISON & ASSOCIATES PTY LTD |
Catchwords: | Costs Appeal of registrar's decision Turns on own facts |
Legislation: | Nil |
Case References: | CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 Stanley v Layne Christensen Company [2006] WASCA 56 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MARK FREDERICK ADDISON
First Defendant
CATHRINE LINDA BURKE
Second Defendant
BURKE ADDISON & ASSOCIATES PTY LTD
Third Defendant
Catchwords:
Costs - Appeal of registrar's decision - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Defendants pay the plaintiff's costs of the extension of time application
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : Mony de Kerloy
First Defendant : Civic Legal
Second Defendant : Civic Legal
Third Defendant : Civic Legal
Case(s) referred to in judgment(s):
CVW Group Holdings Pty Ltd v Addison [2011] WASC 267
Stanley v Layne Christensen Company [2006] WASCA 56
(Page 3)
1 LE MIERE J: On 13 December 2010 a registrar made an order (the springing order) that unless within 10 days the defendants gave discovery of particular documents or classes of documents the defendants' defence be struck out and judgment be entered for the plaintiff. The defendants did not file a further affidavit of discovery in accordance with the springing order. The plaintiff entered judgment against the defendants. The defendants brought two separate applications. First, the defendants appealed from the decision of the registrar and sought an order that the springing order be set aside. Second, by separate application, the defendants sought an order that the time for compliance with the springing order be extended and the judgment against them be set aside (the extension of time application).
2 I allowed the appeal, set aside the springing order and made a new order for discovery. I ordered that the defendants should pay the costs of the application to the registrar, including reserved costs. I found that, having allowed the appeal and set aside the springing order, it was unnecessary to determine the defendants' extension of time application. However, I found that if I had not allowed the appeal against the springing order I would have extended the time for the defendants to comply with that order. See CVW Group Holdings Pty Ltd v Addison [2011] WASC 267.
Costs issue
3 On 30 September 2011 I made an order that the question of costs will be determined on the papers. These further reasons deal with the issue of costs. The defendants submit that the plaintiff should pay the defendants' costs of the appeal and of the extension of time application. The plaintiff seeks an order that the defendants pay the plaintiff's costs of the appeal and of the extension of time application. The plaintiff further seeks an order that both sets of costs should be awarded on an indemnity basis and payable forthwith.
Principles
4 The judge hearing an appeal from the registrar has the powers and duties of the Court of Appeal. The Court of Appeal has a discretion as to the order for costs of an appeal. The court can make such order for the costs of an appeal as it, in the circumstances, considers to be just. The usual exercise of that discretion is that the costs of an appeal follow the event. Where the appeal involves separate issues, the costs of an issue may be awarded to the party who succeeds on it.
(Page 4)
5 A court may deny a successful appellant costs where the appellant has not complied with the Rules or orders of the court or has in some other way impinged upon the proper administration of the court process.
The appeal
6 The appeal gave rise to two principal issues. First, should the defendants be ordered to give discovery of the documents which the registrar ordered the defendants to give discovery of. The second issue was whether or not a springing order should be made. The defendants were unsuccessful on the first issue. I affirmed the decision of the registrar to order the defendants to give discovery of the specified documents. The defendants were successful on the second issue. I held that the circumstances did not warrant the step of a springing order.
7 In my reasons for allowing the appeal I found that the conduct of the defendants which led to the making of the springing order, together with their conduct in failing to attend the mediation and failing to attend the hearing of the appeal before the master at the listed time, is conduct falling below that expected of litigants and their legal representatives.
8 Taking into account that the defendants were unsuccessful in the appeal on the issue of whether an order for discovery should be made and the manner in which the defendants conducted the appeal they should not be awarded the costs of the appeal.
9 The plaintiff succeeded in the appeal on the issue of whether an order for discovery should be made. The plaintiff was unsuccessful in maintaining the springing order. Having regard to the plaintiff's partial success on the appeal and the conduct of the defendants leading to, and in the conduct of, the appeal, it is appropriate that the plaintiff's costs be in the cause. The circumstances do not justify an order for indemnity costs.
Extension of time application
10 The general rule is that where a party seeks a dispensation or indulgence of the court, that party will be required to pay the costs of the application, whether or not it succeeds: Stanley v Layne Christensen Company [2006] WASCA 56 [52] (Wheeler JA). However, the court will have regard to the reasonableness of the parties' conduct in determining how costs should be awarded. Where a contested application, even for an indulgence, is unnecessary because the party acting reasonably would have consented to appropriate orders, the party who has caused the cost to be unnecessarily incurred, will not obtain its costs of such a proceeding
(Page 5)
- merely because the application is for some indulgence: Stanley v Layne Christensen Company [52] (Wheeler JA). The focus should be on the reasonableness or otherwise of the defendants allowing themselves to get out of time and the reasonableness of the plaintiff's opposition to the application for an extension of time.
11 I do not consider the opposition of the plaintiff to the extension of time application to have been unreasonable. I do not consider the defendants were relevantly at fault in letting time expire. The defendants allowed time to expire because they pursued an appeal against the springing order. However, the defendants failed to apply for and obtain a stay of the springing order pending the appeal. The plaintiff had to respond to two separate applications: the appeal and the extension of time application. That would not have been necessary if the defendants had obtained a stay of the springing order pending the appeal. Furthermore, the appeal and the extension for time application could have been, but were not, heard together because of the manner in which the defendants conducted the matters. Those circumstances are described in [8] in [2011] WASC 267. In all the circumstances the appropriate order is that the defendants pay the plaintiff's costs of the extension of time application. The circumstances do not justify any order for indemnity costs.
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