Eastland Technology Australia Pty Ltd v Whisson

[2005] WASCA 144 (S)

EASTLAND TECHNOLOGY AUSTRALIA PTY LTD & ORS -v- WHISSON & ORS [2005] WASCA 144 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 144 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:104/2002	Heard:	11 & 12 APRIL 2005
Coram:	STEYTLER P MCLURE JA	Delivered:	4/08/05
Supplementary Delivered:	30/09/05
No of pages:	5	Judgment Part:	1 of 1
Result:	Orders made
Category:	B
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Parties:	EASTLAND TECHNOLOGY AUSTRALIA PTY LTD (059 479 391) FEE-ZONE PTY LTD INTER-CONTINENTAL CORPORATION PTY LTD MAXWELL EDMUND WHISSON DEAN BRIAN PRESTIDGE SILVERFERN NOMINEES PTY LTD as trustee of the Prestidge Family Trust (070 887 722)
Catchwords:	Costs of the appeal and lifting of stay Turns on own facts
Legislation:	Nil
Case References:	Eastland Technology Australia Pty Ltd & Ors v Whisson & Ors [2005] WASCA 144 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : EASTLAND TECHNOLOGY AUSTRALIA PTY LTD & ORS -v- WHISSON & ORS [2005] WASCA 144 (S) CORAM : STEYTLER P

MCLURE JA

HEARD : 11 & 12 APRIL 2005 DELIVERED : 4 AUGUST 2005 SUPPLEMENTARY
DECISION : 30 SEPTEMBER 2005 FILE NO/S : FUL 104 of 2002 BETWEEN : EASTLAND TECHNOLOGY AUSTRALIA PTY LTD (059 479 391)

First appellant

FEE-ZONE PTY LTD
Second appellant

INTER-CONTINENTAL CORPORATION PTY LTD
Third appellant

AND

MAXWELL EDMUND WHISSON
First respondent

DEAN BRIAN PRESTIDGE
Second respondent

SILVERFERN NOMINEES PTY LTD as trustee of the Prestidge Family Trust (070 887 722)
Third respondent

(Page 2)


ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : TEMPLEMAN J

Citation : EASTLAND TECHNOLOGY AUSTRALIA PTY LTD & ORS -v- WHISSON & ORS [2002] WASC 150

File No : COR 347 of 1999

Catchwords:

Costs of the appeal and lifting of stay - Turns on own facts

Legislation:

Nil

Result:

Orders made

Category: B

(Page 3)

Representation:

Counsel:

First appellant : Mr P I Jooste QC and Mr D K J Skender
Second appellant : Mr P I Jooste QC and Mr D K J Skender
Third appellant : Mr P I Jooste QC and Mr D K J Skender
First respondent : Mr C G Colvin SC and Mr B W Ashdown
Second respondent : Mr C G Colvin SC and Mr B W Ashdown
Third respondent : Mr C G Colvin SC and Mr B W Ashdown

Solicitors:

First appellant : Gadens Lawyers
Second appellant : Gadens Lawyers
Third appellant : Gadens Lawyers
First respondent : B W Ashdown
Second respondent : B W Ashdown
Third respondent : B W Ashdown

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

Eastland Technology Australia Pty Ltd & Ors v Whisson & Ors [2005] WASCA 144

Case(s) also cited:

Nil


(Page 4)

1 STEYTLER P & MCLURE JA: These reasons concern the costs connected with the appeal in Eastland Technology Australia Pty Ltd & Ors v Whisson & Ors [2005] WASCA 144. On 4 August 2005 the Court ordered that the appeal be dismissed, there be a certificate for second counsel and there be liberty to apply generally. At the appellants' request, the matter was adjourned to enable the parties to file affidavits and submissions relating to the balance of the orders sought by the respondents (numbered 2, 4, 5, 6 and 7 in a minute dated 4 August 2005). Those orders are that:

2. The Appellants do jointly and severally pay the Respondents' costs of the appeal, including reserved costs to be taxed;

4. The limit for the costs scale item for 'drawing and settling index' (being item 20(b) of the Legal Practitioners (Supreme Court) Contentious Business Determination 2002 and item 22(b) of the Legal Practitioners (Supreme Court) Contentious Business Determination 2004) be increased to $5,544.00;

5. The limit for the costs scale item for 'getting up for hearing' (being item 20(c) of the Legal Practitioners (Supreme Court) Contentious Business Determination 2002 and scale item 22(c) of the Legal Practitioners (Supreme Court) Contentious Business Determination 2004) be increased to $13,640.00

6. The money standing to the credit of the joint bank account established pursuant to the order of the Full Court made 19 October 2004 be paid out to the Respondents' solicitor on behalf of the Respondents;

7. The stay upon further enforcement of the order for costs and the allocatur dated 26 July 2004 upon the Respondents' Bill of Costs for Taxation pursuant to the order of the Full Court made 19 October 2004 be lifted.

2 It was agreed that two members of the coram could determine the matter. The respondents filed an outline of submissions and affidavit of Mr Brendan Ashdown in support of the proposed orders. By letter dated 1 September 2005, the appellants' new solicitors informed the Court that the appellants did not intend to file any affidavits or submissions and did

(Page 5)

not oppose pars 2, 4, 5, 6 and 7 of the respondents' minute of proposed orders. That being the case, the orders can be made on the papers.

3 There is no basis to depart from the usual rule that a successful party is entitled to recover costs from the unsuccessful parties on a joint and several basis. There will be an order in terms of proposed order 2.

4 Having regard to the nature of the issues, and the conduct of the appellants in the appeal, we are satisfied that the proper course is to increase the limits for the cost scale items in accordance with proposed orders 4 and 5.

5 Proposed orders 6 and 7 relate to the trial costs awarded to the respondents. In view of the outcome of the appeal and the absence of any objection, there will be orders in terms of proposed orders 6 and 7.

6 Accordingly, in addition to the orders made by the Court on 4 August 2005, the Court hereby makes orders in terms of pars 2, 4, 5, 6 and 7 of the respondents' minute as set out above.