CVW GROUP HOLDINGS PTY LTD -v- ADDISON [2011] WASC 267 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 267 (S)
Case No:	CIV:3013/2009	Heard:	ON THE PAPERS
Coram:	LE MIERE J	Delivered:	9/08/12
No of pages:	5	Judgment Part:	1 of 1
Result:	Defendants pay the plaintiff's costs of the extension of time application
Category:	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

CITATION : CVW GROUP HOLDINGS PTY LTD -v- ADDISON [2011] WASC 267 (S) CORAM : LE MIERE J HEARD : ON THE PAPERS DELIVERED : 9 AUGUST 2012 FILE NO/S : CIV 3013 of 2009 BETWEEN : CVW GROUP HOLDINGS PTY LTD

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…

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: [2011] WASC 267 (S)
Decision Date

CaseChat Overview and Summary

The case of CVW Group Holdings Pty Ltd v Addison involved a dispute between the plaintiff, CVW Group Holdings Pty Ltd, and the defendants, Mark Frederick Addison, Cathrine Linda Burke, and Burke Addison & Associates Pty Ltd. The primary dispute centred on the defendants' failure to comply with a springing order mandating the discovery of specific documents, leading to the plaintiff entering judgment against them. The defendants subsequently appealed the registrar's decision and sought an extension of time to comply with the order and to set aside the judgment.

The court had to determine the appropriate order for costs in relation to both the appeal from the registrar's decision and the application for an extension of time. Specifically, the court needed to decide whether the defendants should bear the costs of the appeal and the extension of time application, and if so, whether these costs should be awarded on an indemnity basis.

In the court's reasoning, it was established that the defendants were unsuccessful on the main issue of whether a discovery order should be made but were successful in their appeal against the imposition of the springing order. The court found the defendants' conduct during the appeal to be below the expected standard for litigants. Consequently, the defendants were not awarded the costs of the appeal. Regarding the extension of time application, the court concluded that the plaintiff's opposition was reasonable, and the defendants' failure to apply for a stay of the springing order pending the appeal unnecessarily complicated the proceedings. Therefore, the court ruled that the defendants should bear the plaintiff's costs of the extension of time application. However, the court did not find the circumstances warranted an order for indemnity costs.

The final orders of the court mandated that the defendants pay the plaintiff's costs of the extension of time application, but without awarding indemnity costs.

Orders