Drexel London (a firm) v Gove (Blackman)

[2009] WASCA 181 (S)

DREXEL LONDON (a firm) -v- GOVE (BLACKMAN) [2009] WASCA 181 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASCA 181 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:16/2007	Heard:	6-8 MAY 2009 & 7 DECEMBER 2009
Coram:	McLURE P	Delivered:	21/10/09
Supplementary Delivered:	16/12/09
No of pages:	17	Judgment Part:	1 of 1
Result:	Orders to be made
Category:	B
PDF Version

Parties:	DREXEL LONDON (a firm) SHARON LEE GOVE (BLACKMAN) BARNABY PIERRE COLIN WOOD PAUL CHARLES BLACKMAN KYLE THEODORE PETERS MICHAEL ANTONY KUBA SHELLEY MERRILYN GOLLAN MARYANNE FIORE MIA LEE FARINOSI TINA ELIZABETH D'CASTRO (ACKERMAN) JULIETTE CHLOE VIRGINIE WOOD IAN ROBERT MICHEL REGNARD DANNIELLE DORISSE ELIZABETH BECKWITH NIGEL KENNETH GILES NEIL ALEXANDER GRANT ROBYN LESLEY DREXEL THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175) HALPERN GLICK PTY LTD (ACN 008 729 204) CITY OF FREMANTLE DEAN DAVID HOLM GRAHAM MARC DREXEL RICHARD ASH BLACK ASH INVESTMENTS PTY LTD (ACN 007 949 395) DREXEL LONDON (A FIRM)
Catchwords:	Orders Costs Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DREXEL LONDON (a firm) -v- GOVE (BLACKMAN) [2009] WASCA 181 (S) CORAM : McLURE P HEARD : 6-8 MAY 2009 & 7 DECEMBER 2009 DELIVERED : 21 OCTOBER 2009 SUPPLEMENTARY
DECISION : 16 DECEMBER 2009 FILE NO/S : CACV 16 of 2007 BETWEEN : DREXEL LONDON (a firm)

Appellant

AND

SHARON LEE GOVE (BLACKMAN)
First Respondent

BARNABY PIERRE COLIN WOOD
Second Respondent

PAUL CHARLES BLACKMAN
Third Respondent

KYLE THEODORE PETERS
Fourth Respondent

MICHAEL ANTONY KUBA
Fifth Respondent

SHELLEY MERRILYN GOLLAN
Sixth Respondent

(Page 2)

MARYANNE FIORE
Seventh Respondent

MIA LEE FARINOSI
Eighth Respondent

TINA ELIZABETH D'CASTRO (ACKERMAN)
Ninth Respondent

JULIETTE CHLOE VIRGINIE WOOD
Tenth Respondent

IAN ROBERT MICHEL REGNARD
Twelfth Respondent

DANNIELLE DORISSE ELIZABETH BECKWITH
Thirteenth Respondent

NIGEL KENNETH GILES
Fourteenth Respondent

NEIL ALEXANDER GRANT
Fifteenth Respondent

ROBYN LESLEY DREXEL
Sixteenth Respondent

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Seventeenth Respondent

HALPERN GLICK PTY LTD (ACN 008 729 204)
Eighteenth Respondent

FILE NO/S : CACV 20 of 2007 BETWEEN : CITY OF FREMANTLE

Appellant

AND

(Page 3)

SHARON LEE GOVE (BLACKMAN)
First Respondent

BARNABY PIERRE COLIN WOOD
Second Respondent

PAUL CHARLES BLACKMAN
Third Respondent

KYLE THEODORE PETERS
Fourth Respondent

MICHAEL ANTONY KUBA
Fifth Respondent

SHELLEY MERRILYN GOLLAN
Sixth Respondent

MARYANNE FIORE
Seventh Respondent

MIA LEE FARINOSI
Eighth Respondent

TINA ELIZABETH D'CASTRO (ACKERMAN)
Ninth Respondent

JULIETTE CHLOE VIRGINIE WOOD
Tenth Respondent

DEAN DAVID HOLM GRAHAM
Eleventh Respondent

IAN ROBERT MICHEL REGNARD
Twelfth Respondent

DANNIELLE DORISSE ELIZABETH BECKWITH
Thirteenth Respondent

NIGEL KENNETH GILES
Fourteenth Respondent

(Page 4)

NEIL ALEXANDER GRANT
Fifteenth Respondent

ROBYN LESLEY DREXEL
Sixteenth Respondent

MARC DREXEL
Seventeenth Respondent

DREXEL LONDON (a firm)
Eighteenth Respondent

FILE NO/S : CACV 114 of 2007 BETWEEN : SHARON LEE GOVE (BLACKMAN)

First Appellant

BARNABY PIERRE COLIN WOOD
Second Appellant

PAUL CHARLES BLACKMAN
Third Appellant

KYLE THEODORE PETERS
Fourth Appellant

MICHAEL ANTONY KUBA
Fifth Appellant

SHELLEY MERRILYN GOLLAN
Sixth Appellant

MARYANNE FIORE
Seventh Appellant

MIA LEE FARINOSI
Eighth Appellant

TINA ELIZABETH D'CASTRO (ACKERMAN)
Ninth Appellant

(Page 5)

JULIETTE CHLOE VIRGINIE WOOD
Tenth Appellant

DEAN DAVID HOLM GRAHAM
Eleventh Appellant

IAN ROBERT MICHEL REGNARD
Twelfth Appellant

DANNIELLE DORISSE ELIZABETH BECKWITH
Thirteenth Appellant

NIGEL KENNETH GILES
Fourteenth Appellant

NEIL ALEXANDER GRANT
Fifteenth Appellant

MARC DREXEL
Sixteenth Appellant

ROBYN LESLEY DREXEL
Seventeenth Appellant

AND

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
First Respondent

RICHARD ASH BLACK
Second Respondent

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Third Respondent

DREXEL LONDON (A FIRM)
Fourth Respondent

CITY OF FREMANTLE
Fifth Respondent

(Page 6)

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : TEMPLEMAN J

Citation : GOVE -v- BLACK & ORS [2006] WASC 298

File No : CIV 2375 of 1997, CIV 2370 of 1997, CIV 2371 of 1997, CIV 2373 of 1997, CIV 2374 of 1997, CIV 2376 of 1997, CIV 2377 of 1997, CIV 2378 of 1997, CIV 2381 of 1997, CIV 2382 of 1997, CIV 2398 of 1997, CIV 2411 of 1997, CIV 2412 of 1997, CIV 2413 of 1997, CIV 2414 of 1997, CIV 2415 of 1997, CIV 1202 of 1998

Catchwords:

Orders - Costs - Turns on own facts

Legislation:

Nil

Result:

Orders to be made

(Page 7)

Category: B

Representation:

CACV 16 of 2007

Counsel:

Appellant : Mr R A Corboy
First Respondent : Mr G Porter
Second Respondent : Mr G Porter
Third Respondent : Mr G Porter
Fourth Respondent : Mr G Porter
Fifth Respondent : Mr G Porter
Sixth Respondent : Mr G Porter
Seventh Respondent : Mr G Porter
Eighth Respondent : Mr G Porter
Ninth Respondent : Mr G Porter
Tenth Respondent : Mr G Porter
Twelfth Respondent : Mr G Porter
Thirteenth Respondent : Mr G Porter
Fourteenth Respondent : Mr G Porter
Fifteenth Respondent : Mr G Porter
Sixteenth Respondent : Mr D L Murphy
Seventeenth Respondent : No appearance
Eighteenth Respondent : Mr S F Popperwell

Solicitors:

Appellant : Jackson McDonald
First Respondent : Talbot Olivier
Second Respondent : Talbot Olivier
Third Respondent : Talbot Olivier
Fourth Respondent : Bradley Bayly Legal
Fifth Respondent : Bradley Bayly Legal
Sixth Respondent : Bradley Bayly Legal
Seventh Respondent : Bradley Bayly Legal
Eighth Respondent : Talbot Olivier
Ninth Respondent : Bradley Bayly Legal
Tenth Respondent : Talbot Olivier
Twelfth Respondent : Talbot Olivier
Thirteenth Respondent : Bradley Bayly Legal

(Page 8)

Fourteenth Respondent : Talbot Olivier
Fifteenth Respondent : Talbot Olivier
Sixteenth Respondent : Mony de Kerloy
Seventeenth Respondent : DibbsBarker
Eighteenth Respondent : Pynt & Partners

CACV 20 of 2007

Counsel:

Appellant : Mr J Eller
First Respondent : Mr G Porter
Second Respondent : Mr G Porter
Third Respondent : Mr G Porter
Fourth Respondent : Mr G Porter
Fifth Respondent : Mr G Porter
Sixth Respondent : Mr G Porter
Seventh Respondent : Mr G Porter
Eighth Respondent : Mr G Porter
Ninth Respondent : Mr G Porter
Tenth Respondent : Mr G Porter
Eleventh Respondent : Mr G Porter
Twelfth Respondent : Mr G Porter
Thirteenth Respondent : Mr G Porter
Fourteenth Respondent : Mr G Porter
Fifteenth Respondent : Mr G Porter
Sixteenth Respondent : Mr D L Murphy
Seventeenth Respondent : Mr D L Murphy
Eighteenth Respondent : Mr R A Corboy

Solicitors:

Appellant : John Eller
First Respondent : Talbot Olivier
Second Respondent : Talbot Olivier
Third Respondent : Talbot Olivier
Fourth Respondent : Bradley Bayly Legal
Fifth Respondent : Bradley Bayly Legal
Sixth Respondent : Bradley Bayly Legal
Seventh Respondent : Bradley Bayly Legal
Eighth Respondent : Talbot Olivier
Ninth Respondent : Bradley Bayly Legal
Tenth Respondent : Talbot Olivier

(Page 9)

Eleventh Respondent : Bradley Bayly Legal
Twelfth Respondent : Talbot Olivier
Thirteenth Respondent : Bradley Bayly Legal
Fourteenth Respondent : Talbot Olivier
Fifteenth Respondent : Talbot Olivier
Sixteenth Respondent : Mony de Kerloy
Seventeenth Respondent : Mony de Kerloy
Eighteenth Respondent : Jackson McDonald

CACV 114 of 2007

Counsel:

First Appellant : Mr G Porter
Second Appellant : Mr G Porter
Third Appellant : Mr G Porter
Fourth Appellant : Mr G Porter
Fifth Appellant : Mr G Porter
Sixth Appellant : Mr G Porter
Seventh Appellant : Mr G Porter
Eighth Appellant : Mr G Porter
Ninth Appellant : Mr G Porter
Tenth Appellant : Mr G Porter
Eleventh Appellant : Mr G Porter
Twelfth Appellant : Mr G Porter
Thirteenth Appellant : Mr G Porter
Fourteenth Appellant : Mr G Porter
Fifteenth Appellant : Mr G Porter
Sixteenth Appellant : Mr D L Murphy
Seventeenth Appellant : Mr D L Murphy
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Fourth Respondent : Mr R A Corboy
Fifth Respondent : Mr J Eller
Sixth Respondent : Mr S F Popperwell

Solicitors:

First Appellant : Talbot Olivier
Second Appellant : Talbot Olivier
Third Appellant : Talbot Olivier
Fourth Appellant : Bradley Bayly Legal

(Page 10)

Fifth Appellant : Bradley Bayly Legal
Sixth Appellant : Bradley Bayly Legal
Seventh Appellant : Bradley Bayly Legal
Eighth Appellant : Talbot Olivier
Ninth Appellant : Bradley Bayly Legal
Tenth Appellant : Talbot Olivier
Eleventh Appellant : Bradley Bayly Legal
Twelfth Appellant : Talbot Olivier
Thirteenth Appellant : Bradley Bayly Legal
Fourteenth Appellant : Talbot Olivier
Fifteenth Appellant : Talbot Olivier
Sixteenth Appellant : Mony de Kerloy
Seventeenth Appellant : Mony de Kerloy
First Respondent : DibbsBarker
Second Respondent : Downings Legal
Third Respondent : Greenland Legal Pty Ltd
Fourth Respondent : Jackson McDonald
Fifth Respondent : John Eller
Sixth Respondent : Pynt & Partners

Case(s) referred to in judgment(s):

Nil

(Page 11)

1 McLURE P: These reasons contain orders giving effect to the reasons for judgment in this matter delivered on 21 October 2009. On that date I ordered the parties to file minutes of proposed orders for which they contended. The orders were complied with.

2 Under cover of a letter dated 25 November 2009, the court provided to the parties a minute in each appeal which collected together all the proposed and contested orders. Because of delays in being able to re-convene the coram, the parties agreed to make their oral submissions before me following which the orders would be made by the coram on the papers, including the transcript of oral submissions.

3 However, at the conclusion of oral submissions on 7 December 2009, only one issue was in contest. The parties consented to me determining that issue and formally making the orders in each appeal. The issue in contest is in the Drexel London appeal (CACV 16 of 2007). Halpern Glick sought an order that it pay one third of Drexel London's costs of the appeal to be taxed. Drexel London sought an order that Halpern Glick pay 40% of those costs. Having regard to the extent of the issues in contest between those two parties and the outcome, my assessment is that the order sought by Halpern Glick is appropriate.

4 The parties will be provided with an advance copy of these reasons before their delivery in open court on Wednesday 16 December 2009 at 9.30 am. If any party wishes to contend that any order hereunder is inconsistent with the oral submissions made on 7 December 2009, they should advise the Court of Appeal office in writing, with notice to all parties by 9.30 am on Monday 14 December 2009. In the absence of any such notice, I will on 16 December 2009 make the following orders:

CACV 114 of 2007 - Injured claimants appeal

(1) The appeal as against the sixth respondent be allowed.

(2) The appeals as against the first, second, third, fourth and fifth respondents be dismissed.

(3) The sixth respondent's cross appeal as against the fourth respondent be allowed.

(4) The sixth respondent's cross appeal as against the first and fifth respondents be dismissed.

(5) The first respondent's notice of contention be upheld.

(Page 12)

(6) The judgment of Templeman J entered on 6 July 2007 be varied as follows:

(a) paragraph 4 be set aside and in lieu thereof judgment be entered as follows:

4. In each of the Group A and Group B Actions:


(1) judgment be entered for the plaintiffs against the fifth and sixth defendants for damages to be assessed;
(2) as between the fifth and sixth defendants, the damages are to be paid as to 50% by the fifth defendant and 50% by the sixth defendant;
(3) the plaintiffs' claims against each of the first, second, third and fourth defendants are dismissed;
(b) paragraph 5 be set aside and in lieu thereof judgment be entered as follows:

5. In the Drexel Action:


(1) judgment is to be entered for the plaintiff against the fifth defendant, for damages to be assessed;
(2) the plaintiff's claims against each of the first, second, third and fourth defendants are dismissed;
(3) judgment be entered for the fifth defendant in the third party proceedings;
(4) the third party do contribute to the extent of 50% of any damages awarded to the plaintiff following an assessment of the plaintiff's

(Page 13)

damages pursuant to paragraph 5(1) above and the costs of that assessment;

(c) paragraph 6 be set aside and in lieu thereof judgment be entered as follows:

6. In the Graham Action the plaintiff's claims against the first, second, third and fourth defendants are dismissed;

(d) paragraph 7 be set aside and in lieu thereof judgment be entered as follows:

7. The fifth and sixth defendants, jointly and severally, do pay the plaintiffs' costs of the Group A and Group B Actions to be taxed in accordance with the procedure and on the basis set out in paragraph 9;

(e) paragraph 8 be set aside and in lieu thereof judgment be entered as follows:

8. In the Drexel Action:


(1) the fifth defendant do pay the plaintiff's costs to be taxed in accordance with the procedure and on the basis set out in paragraph 9;
(2) the third party do contribute to the extent of 50% of any costs payable by the fifth defendant to the plaintiff pursuant to paragraph 8(1) above;
(f) paragraph 10 be set aside and in lieu thereof judgment be entered as follows:

10. The fifth and sixth defendants, jointly and severally pay the costs of the Group A plaintiffs of obtaining a transcript of the trial, such costs to be apportioned between the Group A plaintiffs in accordance with the Formula;

(g) paragraph 11 be set aside and in lieu thereof judgment be entered as follows:

(Page 14)

11. As between the fifth and sixth defendants, the Group A and Group B plaintiffs' costs are to be paid as to 50% by the fifth defendant and 50% by the sixth defendant;

(h) paragraph 12(1) be varied by the addition of a new sub-paragraph (d) as follows:

(d) the fourth defendant's costs of the action;

(i) paragraph 12(3) and 12(4) be varied so as to provide:

(3) Subject to paragraph (2) above, the costs of each of the first, second, third and fourth defendants are to be taxed as a single set of costs;

(4) Where costs were incurred by the first, second, third or fourth defendants in relation to individual claims, those costs shall be paid by the plaintiffs concerned;

(j) paragraph 13 be set aside;

(k) paragraph 15 be set aside;

(l) paragraph 16 be set aside;

(m) paragraph 26 be varied so as to provide:

26. The fourth defendant do pay the fifth defendant's costs of those proceedings insofar as those costs may have increased the fifth defendant's costs of the trial;

(n) paragraph 27 be varied to provide:

(1) The fifth defendant's contribution notices dated 23 December 1998 and 18 January 1999 against the first defendant be dismissed;

(2) The fifth defendant do pay the costs of the first defendant of those proceedings insofar as those proceedings may have increased the first defendant's costs of the trial to be taxed;

(o) a new paragraph 27A be inserted as follows:

(Page 15)

(1) There be judgment for the fifth defendant against the sixth defendant in the fifth defendant's fourth party/contribution proceedings against the sixth defendant;

(2) As between the fifth defendant and the sixth defendant there be no order as to costs in the fifth defendant's fourth party/contribution proceedings against the sixth defendant and the fifth defendant's third party proceedings in the Drexel Action;

(p) paragraph 28 be varied so as to provide:

(1) The sixth defendant's contribution notices dated 13 October 2004 against the first, second, third and fourth defendants are dismissed;

(2) The sixth defendant do pay the costs of the first, second, third and fourth defendants of those proceedings insofar as those costs may have increased any of those defendants' costs of the trial to be taxed.

(7) The appellants pay the first, second, third, fourth and fifth respondents' costs of the appeal including all reserved costs to be taxed.

(8) The sixth respondent pay 40% of the appellants' (other than the eleventh appellant's) costs of the appeal to be taxed.

(9) The sixth respondent pay the fifth respondent's costs of the cross appeal insofar as those costs may have increased any of the fifth respondent's costs of the appeal, to be taxed.

(10) The fourth respondent pay a third of the sixth respondent's costs of the cross appeal insofar as those costs may have increased the sixth respondents' costs of the appeal to be taxed.

(11) The appellants pay the first respondent's costs of its notice of contention, including all reserved costs, to be taxed.

(12) The sixth respondent pay the first respondent's costs of the sixth respondent's cross appeal, including all reserved costs, to be taxed.

(13) There be liberty to apply.

(Page 16)

CACV 16 of 2007 - Drexel London appeal

1. The appellant's appeal against the first to tenth respondents and twelfth to seventeenth respondents be dismissed.

2. The appellant's appeal against the eighteenth respondent be allowed and the judgment of Templeman J entered 6 July 2007 be amended as provided for in paragraph 6 of the orders made in CACV 114 of 2007.

3. The notice of contention of the first to tenth respondents and of the twelfth to sixteenth respondents be upheld.

4. The notice of contention of the seventeenth respondent be upheld.

5. The notice of contention of the eighteenth respondent be dismissed.

6. The appellant pay 70% of the first to tenth respondents and the twelfth to sixteenth respondents' costs of the appeal to be taxed as one bill.

7. The appellant pay the seventeenth respondent's costs of the appeal in relation to ground 4 to be taxed.

8. The appellant pay the seventeenth respondent's costs of the notice of contention of the seventeenth respondent to be taxed.

9. The eighteenth respondent pay one third of the appellant's costs of the appeal to be taxed.

10. There be liberty to apply.

CACV 20 of 2007 - City of Fremantle's appeal

1. The appeal be allowed and the judgment of Templeman J entered 6 July 2007 be amended as provided for in paragraph 6 of the orders made in CACV 114 of 2007.

2. The first to seventeenth respondents pay the appellant's costs of this appeal to be taxed.

3. The first to seventeenth respondents and the eighteenth respondent do each pay one half of the appellant's costs of the hearing held before Templeman J on 23 March 2007 to be taxed.

(Page 17)

4. The first to seventeenth respondents each be granted an indemnity certificate pursuant to s 10(1) of the Suitors' Fund Act 1964 (WA).