Danzone Pty Ltd v Westerncare Pty Ltd
[2016] WASC 255
•16 AUGUST 2016
DANZONE PTY LTD -v- WESTERNCARE PTY LTD [2016] WASC 255
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 255 | |
| Case No: | CIV:1947/2016 | 19 JULY 2016 | |
| Coram: | MASTER SANDERSON | 16/08/16 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Costs order in favour of plaintiffs | ||
| A | |||
| PDF Version |
| Parties: | DANZONE PTY LTD MARISA ANGELA MARCHESE TALIANGIS PETER MICHAEL TALIANGIS DAVID CARL MARCHESE WESTERNCARE PTY LTD GEOWASH PTY LTD |
Catchwords: | Costs Payment of costs when interpleader granted Costs payable forthwith and shared equally between defendants |
Legislation: | Nil |
Case References: | Re McPherson (1929) VLR 295 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- MARISA ANGELA MARCHESE TALIANGIS
PETER MICHAEL TALIANGIS
DAVID CARL MARCHESE
Plaintiffs
AND
WESTERNCARE PTY LTD
First Defendant
GEOWASH PTY LTD
Second Defendant
Catchwords:
Costs - Payment of costs when interpleader granted - Costs payable forthwith and shared equally between defendants
Legislation:
Nil
Result:
Costs order in favour of plaintiffs
Category: A
Representation:
Counsel:
Plaintiffs : Mr C J Martin
First Defendant : Mr A M Prime
Second Defendant : Mr A P Hershowitz
Solicitors:
Plaintiffs : Chris Martin & Associates
First Defendant : MDS Legal
Second Defendant : Robertson Hayles Lawyers
Case(s) referred to in judgment(s):
Re McPherson (1929) VLR 295
1 MASTER SANDERSON: This was the plaintiffs' interpleader summons. On 28 June 2016 I granted the interpleader and indicated the plaintiffs' costs of the interpleader would be shared equally between the first and second defendants. There was no real opposition to the interpleader being granted and the main issue raised by the first defendant was whether or not the costs of the plaintiff ought to be paid forthwith or whether they ought await the outcome of the trial of the action between the first defendant and the second defendant. I ordered the costs be paid forthwith. This is an issue which arises frequently in interpleader proceedings and the purpose of these reasons is to explain why I made the costs order I did. First it is necessary to give some brief background facts to the application.
2 The plaintiffs are the registered proprietor of a property at 343 Canning Highway, Palmyra. The first defendant was a franchisee of the second defendant in relation to certain business undertakings. The franchise agreement between the first and second defendants was entered into on 16 August 2014. On the same day the first and second defendants entered into a lease with the plaintiff of the Canning Highway property. On 24 March 2015 an application for development approval was lodged by the second defendant with the City of Melville. On 13 May 2015 the second defendant requested the plaintiffs to sign a Step In Deed. The purpose of this deed was to allow the second defendant to develop the property when development approval was obtained.
3 A second development application was required and on 4 September 2015 the City of Melville approved that application. On 9 September 2015 the plaintiffs returned the executed copy of the Step In Deed to the second defendant. On 16 November 2015 the plaintiffs were notified of a dispute between the first and second defendants. On 18 November 2015 the plaintiffs were notified of the franchise agreement between the defendants had been terminated. On 7 December 2015 the second defendant requested the plaintiffs to transfer the lease to it. A day later the first defendant threatened the plaintiffs with an injunction if the lease was transferred to the second defendant.
4 The dispute between the first and second defendant raged on and continues to rage on. The precise nature of that dispute is not presently of concern. The plaintiff has from the first maintained a neutral position. The plaintiffs did not want to be part of any dispute between the defendants and hence the application for interpleader relief.
5 It is unnecessary for present purposes to detail the principles governing the grant of such relief. It is sufficient to say only two things. First an interpleader allows a stakeholder to turn the dispute between parties over to the court for resolution. Second its purpose is to protect a person who faces competing claims but has done no wrong.
6 It is generally accepted a stakeholder who comes to court promptly when faced with conflicting claims and has been guilty of no wrong which has increased costs will be entitled to costs. That statement of principle is based upon the old Victorian decision of Re McPherson (1929) VLR 295. The correctness of that case is not to be doubted. But the question which so often arises is when should the costs be paid and who should pay them. Neither counsel for the defendants objected to the costs being borne equally between the defendants, subject to the party who was ultimately successful being entitled to recover any costs paid from the other party. But such an order is really only of utility if the costs are to be paid prior to the resolution of the main dispute. Otherwise they might just as well be reserved with an order being made when the matter is resolved. The difficulty with that of course is a plaintiff who is blameless and who has incurred significant costs may be kept out of those costs for years.
7 In my view to do justice to a plaintiff who has no interest in the dispute between the remaining parties and who has acted properly is to order costs be paid forthwith. Unless there are extenuating circumstances - and every case must be determined on its merits - it would seem to me the costs should be borne equally between the parties to the real dispute. Here that meant splitting the costs equally between the first and second defendants and ordering those costs be paid forthwith.
8 The plaintiffs sought to have their costs fixed without the need for a taxation. With that in mind I ordered the solicitor for the plaintiffs to file a draft bill of costs. That has been done. Counsel for the first defendant raised some objections to the bill. I have considered the bill and the supporting documentation and I am satisfied it is in all respects reasonable. Accordingly there will be an order that the first and second defendants pay the plaintiffs' costs of the application fixed at $16,196.49. The first and second defendants are to pay half of those costs each. The plaintiffs' solicitor should bring in a short minute of orders to reflect these reasons.
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