Eclipse Developments (WA) Pty Ltd v Laserline Enterprises Pty Ltd Trading as ADWEST Group
[2011] WADC 103
•29 JUNE 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: ECLIPSE DEVELOPMENTS (WA) PTY LTD -v- LASERLINE ENTERPRISES PTY LTD TRADING AS ADWEST GROUP [2011] WADC 103
CORAM: REGISTRAR KINGSLEY
HEARD: 13 MAY 2011
DELIVERED : 29 JUNE 2011
FILE NO/S: CIVO 1234 of 2011
BETWEEN: ECLIPSE DEVELOPMENTS (WA) PTY LTD
Applicant
AND
LASERLINE ENTERPRISES PTY LTD TRADING AS ADWEST GROUP
Respondent
Catchwords:
Originating summons - Disputed costs in Magistrates Court - No conferral
Legislation:
Nil
Result:
Costs order made
Representation:
Counsel:
Applicant: Mr H Kremer
Respondent: Mr K J Morgan
Solicitors:
Applicant: H Kremer & Co
Respondent: Murfett Legal
Case(s) referred to in judgment(s):
Devere Holdings Pty Ltd v Verge [2006] WASC 297
REGISTRAR KINGSLEY:
Context
The evidence before me comprises the affidavits of Hendrik Kremer sworn 29 March 2011 for the plaintiff (Kremer affidavit) and Kevin Joseph Morgan sworn 10 May 2011 for the defendant (Morgan affidavit).
On 6 May 2009 Laserline Enterprises Pty Ltd (Laserline) lodged a claim in the Joondalup Magistrates Court against Eclipse Developments (WA) Pty Ltd (Eclipse). Laserline's claim was for $74,506.78 for moneys owing under invoices rendered pursuant to subcontract agreements entered into between the parties in September 2009.
Eclipse, in August 2010 lodged in the Joondalup Magistrates Court a statement of defence to general procedure, and a counterclaim. The counterclaim arising from alleged breaches by Laserline of the subcontract agreements, or from a breach of a duty of care claimed the sum of $245,586.07. The counterclaim was amended by order of a magistrate on 25 November 2010 to increase the amount claimed to $267,051.47.
On 21 December 2010 Laserline lodged a statement of defence to the counterclaim. Until 22 February 2011 Laserline was not represented by a solicitor. On 22 February 2011 Murfett Legal lodged a notice of change of address for service. However it is apparent from Laserline's letter of 14 January 2011 to Eclipse's solicitor that Laserline had been obtaining legal advice (Kremer affidavit p 47).
The claim in the Magistrates Court was proceeding to a listing conference on 27 January 2011. By its letter of 14 January 2011 Laserline notes that Eclipse's counterclaim exceeds the jurisdictional limit of the Magistrates Court and considers the options for Eclipse to be (a) waive the excess over $75,000; (b) transfer to the District Court; or (c) for the parties to agree to extend the jurisdictional limit of the Magistrates Court. Laserline concludes the first paragraph by writing:
We would agree for the case to remain within the Magistrates Court.
Laserline continues, in its letter of 14 January 2011, by noting that it is likely the case will be referred to mediation, and Laserline proposes both parties agree to the case going to mediation, and that if Laserline and Eclipse cannot agree a mediator then the court can appoint a mediator.
A form 49 memorandum of consent was enclosed in Laserline's letter of 14 January 2011. The terms of the memorandum of consent, signed by Laserline, are (paraphrased except for par 2):
1.The case be referred to mediation.
2.The case remain in the Magistrates Court, and their monetary jurisdictional limit be increased.
3.The listing conference on 27 January 2011 be vacated.
It would appear, by the fact orders were made in a listing conference on 27 January 2011 that the consent order was not agreed to by Eclipse. The orders made on 27 January 2011 include a s 72 order in relation to the defendant's expert witnesses and that each party file and serve a 'Listing Conference' [sic] within 28 days. It appears common ground that the reference to listing conference means a listing conference memorandum.
From Morgan's affidavit (par 5) it appears neither party complied with the 27 January 2011 order. By an application dated 28 February 2011 Laserline sought an extension of time to comply. That application was heard on 21 March 2011. By 21 March 2011 Eclipse had filed a listing conference memorandum. The solicitor for Eclipse successfully sought an extension of time to file and serve the listing conference memorandum.
Morgan deposes that at the hearing on 21 March 2011 he informed Kremer that Laserline objected to the jurisdiction in relation to the counterclaim. A form 27 notice of objection to jurisdiction to try counterclaim was filed on 22 March 2011 in the Magistrates Court.
A listing conference memorandum falls under reg 43A Magistrates Court (Civil Proceedings) Rules 2005. Regulation 43A provides that the memorandum must:
(a)include a concise statement of the issues of fact and law that party contends will need to be determined at trial; and
(b)state how each allegation of fact will be proved; and
(c)state the name, address, occupation and qualification of each witness the party will call to give oral evidence at the trial; and
(d)unless the registrar or the Court orders otherwise, annex a statement in the approved form of the intended evidence of each witness who is not an expert witness.
As can be seen the requirements of a listing memorandum are onerous, particularly in relation to providing the statement of each witness who is not an expert.
The plaintiff's application
By an originating summons filed 11 March 2011 Eclipse sought orders that the Magistrates Court case be transferred to the District Court and that the costs of Eclipse, thrown away by the transfer of the case be paid by Laserline. The costs are those costs associated with the preparation and lodging of the listing memorandum.
Laserline opposes the application saying there was no conferral on the originating summons and, in any event, no costs will be wasted because the statement will be utislised in the District Court proceedings. Laserline's counsel submits that the transfer of proceedings did not come about from anything Laserline did – that the transfer was always on the cards if Laserline objected.
Discussion
Under the Magistrates Court (Civil Proceedings) Act 2004 a counterclaim that exceeds the jurisdictional limit can be heard by a magistrate. Nothing more need be done for this to occur. If the defendant by counterclaim objects to the counterclaim being heard in the Magistrates Court it is for the defendant by counterclaim to file and serve the necessary notice.
Laserline's counsel seeks to portray Laserline's letter of 14 January 2011 as saying that Laserline agrees for the matter to remain in the Magistrates Court pending a mediation.
In my opinion the letter of 14 January 2011 is clear. Laserline was agreeing to the action staying in the Magistrates Court. The next paragraph goes on to deal with the question of mediation without any reference to the jurisdictional limit. This is supported by par 2 of the form 49 memorandum of consent.
Accordingly in my opinion Eclipse was led to believe that the action was remaining in the Magistrates Court.
There was a listing conference on 27 January 2011 and a hearing on 21 March 2011 subsequent to the listing conference. Eclipse proceeded to comply with the order for a listing memorandum – albeit late. The listing conference on 27 January 2011 arose in the usual course of the proceedings.
In my opinion there is a potential for the work done in relation to the listing memorandum to be wasted. However that would not be known until after the hearing. The action properly went to the listing conference. The second hearing may well have been unnecessary if Laserline had informed Eclipse in a more timely fashion that it intended to object to the jurisdiction. The costs order made on 21 March 2011 is for costs in the cause.
The form 27 objection to jurisdiction provides that Laserline on the day appointed for trial of this action would apply to the court to adjudicate on the original claim. Thus Laserline was giving notice that the original claim and the counterclaim were to be tried separately and in separate jurisdictions.
The claim and counterclaim arise out of the same subcontract agreement entered into between the parties. The parties are the same and there will be a commonality of witnesses and documents. It makes no sense to hear the actions in two different jurisdictions. To that end Eclipse was required to make an application to transfer the proceedings to this court, such application be supported by an affidavit. Laserline has agreed to the action coming into this court but only after the application was filed.
Laserline notes Eclipse has not conferred in relation to this application. Eclipse however submits as it is an originating summons and therefore no conferral was needed. Laserline's counsel cites Devere Holdings Pty Ltd v Verge [2006] WASC 297 as authority for the proposition that proceedings commenced by originating summons constitutes an application in chambers within the meaning of O 59 r 9 Rules of the Supreme Court 1971 (RSC).
There has been no conferral in this matter. The process of conferral, be it oral or in writing, is to try and resolve the matters in issue, or at least to try and narrow the issues. As the Circular to Practitioners dated 31 January 2006 (Supreme Court) states 'conferral is required no matter how unlikely it is that the parties will ever reach agreement or even narrow the issues'.
Order 59 r 9 RSC does provide for waiver of conferral in urgent cases or for good reason. There was no urgency. The application for transfer was unopposed. No good reason has been put forward as to why there was no conferral. However in relation to the costs issue that was opposed and it is to that issue that the majority of the affidavit is directed. Even if there had been proper conferral an affidavit would have been necessary to ensure the court was properly informed. However the fact that there was no conferral does warrant a sanction.
Costs orders
1.The costs of the listing conference of 27 January 2011 in the Magistrates Court be costs in the cause on the Magistrates Court scale.
2.The costs of the listing conference memorandum be the plaintiff's costs thrown away on the Magistrates Court scale.
3.The costs of the application for transfer of proceedings, excluding the affidavit in support, be the defendant's costs in any event.
4.The costs of the affidavit in support of the transfer of the application and the hearing be the plaintiff's costs in any event.
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