DURBAN ROODEPOORT DEEP, LTD -v- MOSTERT & ORS [2003] WASC 250

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 250
Case No:	CIV:1772/2002	Heard:	4 DECEMBER 2003
Coram:	HASLUCK J	Delivered:	4/12/03
No of pages:	17	Judgment Part:	1 of 1
Result:	The second defendant's application for costs allowed The second defendant's application to set aside dismissed
Category:	B
PDF Version

Parties:	DURBAN ROODEPOORT DEEP, LTD CHARLES PHILIP MOSTERT JOHN STRATTON NOBLE INVESTMENTS PTY LTD (ACN 007 998 914) LEADENHALL AUSTRALIA LTD (ACN 007 997 248) ADVENT INVESTORS PTY LTD (ACN 008 134 209) TIMOTHY OWEN LEBBON DRD AUSTRALASIA ApS DRD AUSTRALASIA PTY LTD
Catchwords:	Practice and procedure Application for security for costs Orders made by consent Whether any necessity to bring application Appropriate order as to costs Turns on own facts
Legislation:	Rules of the Supreme Court, O 43 r 16, O 59 r 9
Case References:	Archer v Channel Seven Perth Pty Ltd [2001] WASC 195 BuyQuick Com. Ltd v Foxgold Pty Ltd [2000] WASC 216 Deputy Commissioner of Taxation for Commonwealth of Australia v Robinswood Pty Ltd [2001] WASC 191 Russell-Davison v Prosin, unreported; SCt of WA (Master Sanderson); Library No 980277; 22 May 1998 Ansons Pty Ltd v Merlex Corp Pty Ltd [2001] WASC 204 APEP Pty Ltd v Smalley (1983) 8 ACLR 260 Otway v Jones [1955] 2 All ER 585 Robinson v Australian Association of Social Workers Ltd [2000] SASC 239 Scherer v Counting Instuments Ltd [1986] 2 All ER 529

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DURBAN ROODEPOORT DEEP, LTD -v- MOSTERT & ORS [2003] WASC 250 CORAM : HASLUCK J HEARD : 4 DECEMBER 2003 DELIVERED : 4 DECEMBER 2003 FILE NO/S : CIV 1772 of 2002 BETWEEN : DURBAN ROODEPOORT DEEP, LTD

Plaintiff

AND

CHARLES PHILIP MOSTERT

First Defendant

JOHN STRATTON

Second Defendant

NOBLE INVESTMENTS PTY LTD (ACN 007 998 914)

LEADENHALL AUSTRALIA LTD (ACN 007 997 248)

ADVENT INVESTORS PTY LTD (ACN 008 134 209)

Third Defendant

TIMOTHY OWEN LEBBON

Fourth Defendant

(Page 2)

FILE NO/S : CIV 1797 of 2002 BETWEEN : DRD AUSTRALASIA ApS

First Plaintiff

DRD AUSTRALASIA PTY LTD

Second Plaintiff

AND

JOHN STRATTON

Defendant

Catchwords:

Practice and procedure - Application for security for costs - Orders made by consent - Whether any necessity to bring application - Appropriate order as to costs - Turns on own facts

Legislation:

Rules of the Supreme Court, O 43 r 16, O 59 r 9

Result:

The second defendant's application for costs allowed

The second defendant's application to set aside dismissed

Category: B

(Page 3)

Representation:

CIV 1772 of 2002

Counsel:

Plaintiff : Mr G M Abbott

First Defendant : No appearance

Second Defendant : Mr G I Macnish

Third Defendant : No appearance

Fourth Defendant : No appearance

Solicitors:

Plaintiff : Allens Arthur Robinson

First Defendant : No appearance

Second Defendant : Cocks Macnish

Third Defendant : No appearance

Fourth Defendant : No appearance

CIV 1797 of 2002

Counsel:

First Plaintiff…

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: [2003] WASC 250
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia heard an application for costs in the matter of Durban Roodepoort Deep, Ltd v Mostert. The second defendant, John Stratton, sought an order for costs associated with a previous application for security for costs, as well as an order to set aside the Registrar's order for payment into court of security for costs. The court examined the history of the application for security for costs, the nature of the dispute between the parties, and the procedural history of the case. The court held that the second defendant should be awarded costs of the application for security, as it was ultimately successful in obtaining security for costs and the plaintiff's intransigence had necessitated the second defendant pressing its application. The court also dismissed the second defendant's application to set aside the Registrar's order, finding it to be incidental to the principal dispute. The same orders were made with respect to CIV 1797 of 2002.

Orders