Dalecoast Pty Ltd v Guardian International Pty Ltd
[2004] WASC 82 (S)
DALECOAST PTY LTD -v- GUARDIAN INTERNATIONAL PTY LTD & ORS [2004] WASC 82 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 82 (S) | |
| Case No: | CIV:2453/1996 | 3 MARCH 2004 & 7 MAY 2004 | |
| Coram: | MCKECHNIE J | 7/05/04 | |
| 4/06/04 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Orders made | ||
| B | |||
| PDF Version |
| Parties: | DALECOAST PTY LTD GUARDIAN INTERNATIONAL PTY LTD GUARDIAN PROTECTIVE COATINGS PTY LTD ANTHONY MAURICE MONISSE GRANT DESMOND BOYCE GARY JOHN DWYER ANTHONY PETER WARREN ROBERT BRUCE ARUNDEL SMITH ALAN FREDERICK BAMFORD |
Catchwords: | Costs following trial Plaintiff successful on some issues No new principles |
Legislation: | Nil |
Case References: | Dalecoast Pty Ltd v Guardian International Pty Ltd & Ors [2004] WASC 82 Dalecoast Pty Ltd v Guardian International Pty Ltd [2001] WASC 199 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 4 JUNE 2004 FILE NO/S : CIV 2453 of 1996 BETWEEN : DALECOAST PTY LTD
- Plaintiff
AND
GUARDIAN INTERNATIONAL PTY LTD
First Defendant
GUARDIAN PROTECTIVE COATINGS PTY LTD
Second Defendant
ANTHONY MAURICE MONISSE
GRANT DESMOND BOYCE
GARY JOHN DWYER
ANTHONY PETER WARREN
Third Defendants
ROBERT BRUCE ARUNDEL SMITH
ALAN FREDERICK BAMFORD
Fourth Defendants
(Page 2)
Catchwords:
Costs following trial - Plaintiff successful on some issues - No new principles
Legislation:
Nil
Result:
Orders made
Category: B
Representation:
Counsel:
Plaintiff : Mr J C Giles
First Defendant : No appearance
Second Defendant : No appearance
Third Defendants : No appearance
Fourth Defendants : Mr P G Clifford
Solicitors:
Plaintiff : Solomon Brothers
First Defendant : No appearance
Second Defendant : No appearance
Third Defendants : No appearance
Fourth Defendants : Tottle Partners
Case(s) referred to in judgment(s):
Dalecoast Pty Ltd v Guardian International Pty Ltd & Ors [2004] WASC 82
Dalecoast Pty Ltd v Guardian International Pty Ltd [2001] WASC 199
Case(s) also cited:
Nil
(Page 3)
1 MCKECHNIE J: On 7 May 2004 I delivered reasons for judgment in Dalecoast Pty Ltd v Guardian International Pty Ltd & Ors [2004] WASC 82. I reserved the entry of judgment and gave leave for submissions to be filed as to the form of the judgment and costs. It was agreed that I would make orders on the basis of the written submissions and without further hearing.
2 The only matter in issue is that of costs, no issue being taken as to Dalecoast's calculation of interest. The second and third defendants have been dismissed from the action. Guardian International played no part in the assessment of damages and has made no submissions as to costs. Messrs Smith and Bamford have made a written submission as to costs to which Dalecoast has responded.
3 Dalecoast seeks the following orders:
"3. The first defendant and the fourth defendants do pay to the plaintiff's costs of the action, including reserved costs and costs of interrogatories, to be taxed.
4. For the purposes of taxation of the costs under paragraph 3:
4.1 the plaintiff have a certificate for the cost of the transcript;
4.2 the limit in item 12 [sic] [13] of the Scale for getting up for trial not apply."
"(a) The fourth defendant do pay 10% of the plaintiff's costs to be taxed; and
(b) The plaintiff do pay 90% of the fourth defendant's costs to be taxed."
5 Dalecoast succeeded against Guardian International on its action for breach of contract in supplying product to Graffiti Proofing Sign Service Pty Ltd ("GPSS"). It also succeeded against Guardian International for damages for misleading and deceptive conduct in which Messrs Smith and Bamford were knowingly concerned. Dalecoast failed in many of its claims set out in the "Further, further, further re-amended statement of claim". As I summarised in the course of my judgment, Dalecoast Pty
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- Ltd v Guardian International Pty Ltd [2001] WASC 199 at [25], Dalecoast attempted to tie all the individual defendants to breaches of contract, and alleged and misleading and deceptive conduct, both at the pre-contractual negotiating stage and representations within the deed. Dalecoast pleaded that further alleged breaches of contract and misleading and deceptive conduct arose long after Messrs Smith and Bamford had sold their interest in Guardian International. The aspect of the claim in relation to supply of product to Guardian Ceramic Coating failed completely as did the claim for charging excess prices between July 1995 and October 1996 for graffiti remover and refusing to supply graffiti remover during 1996. I held that Mr Smith and Guardian International did cause both the coating product and the remover to be developed and in consequence I did not regard Recital A of the franchise agreement was false, misleading or deceptive. Dalecoast pleaded that Guardian International supplied graffiti remover to it at prices in excess of those agreed in the agreement and thereby overcharged it in the sum of $9,028.35. That claim was defeated by an estoppel. As to the claim that Guardian International refused to supply graffiti remover, I held that Dalecoast had not established the refusal to supply remover caused loss.
6 Dalecoast has been successful in two aspects of its claim against Guardian International and in the major aspect of its claim against Messrs Smith and Bamford.
7 However, that success came at the cost of a 10 day hearing together with a further half day hearing on the assessment of damages. I am of opinion that had the action proceeded solely on the issues upon which Dalecoast was successful, the entire action, including assessment of damages, would have been completed in four days.
8 Dalecoast seeks removal of the limit in Item 13 on the basis that the action was unusually complex. Dalecoast submits that the trial required three sets of getting up, including a direction for comprehensive written submissions to be filed in relation to the March 2004 hearing. This is because the trial was heard in February and in May 2001 with a further half day in March 2004. Had the trial been completed in four days there would have been no necessity for a second getting up the case for trial. It was, in one sense, an indulgence to Dalecoast that I made an order for damages to be assessed. Dalecoast had sought an order to elect for an account of profits or assessment of damages. There was no evidence of actual loss until Mr Thorpe's affidavit. It does not seem right that Guardian International should have to pay for extra costs incurred as a result of the further hearing on the assessment. The trial exceeded its
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- scheduled days. I do not attribute the excess to actions on the part of any defendant.
9 It does not follow that because I have removed the limit in Item 13 in respect of the second and third defendants ([2001] WASC 199(S)) the same result should follow here. A defendant is in a different position, having little choice but to respond to all the claims made. The claims on which Dalecoast succeeded were simple and straightforward. They do not meet the criteria for lifting the limit in Item 13. The complexity in the action largely came about by the matters upon which Dalecoast failed in respect of all the defendants. That is not something for which any defendant should pay the costs.
10 Dalecoast was successful and did recover substantial damages. It is inappropriate to award costs against it. Dalecoast has succeeded as against Guardian International on two substantive matters. It has succeeded against Messrs Smith and Bamford on an important aspect of its general claim for damages under the Trade Practices Act.
11 The appropriate costs orders are that Dalecoast's costs should be taxed on the basis of a trial of four days, three of which can be attributed to the Trade Practices claim and damages, and one day to the claim for breach of contract and damages. Dalecoast should have its costs for getting up the case for trial. I can choose between an order confining these costs to the issues upon which Dalecoast succeeded or fixing a percentage. I think it will prove difficult for the taxing officer to separate the costs into discrete areas. On the basis of my impression of the action, and the issues upon which Dalecoast succeeded or failed, I order that it is entitled to 70 per cent of its costs for matters other than trial.
12 In respect of the claim under the Trade Practices Act, Guardian International and the fourth defendants are jointly liable for costs. In respect of the claim for breach of contract, only Guardian International is liable for the costs.
13 The taxed costs should include reserved costs and costs of interrogatories. There will be a certificate for the cost of transcript. No doubt the Taxing Officer will be alert to see there is no double accounting in respect of the cost of appeal books.
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