Elvidge Pty Ltd v BGC Construction Pty Ltd
[2006] WASCA 264 (S)
•1 DECEMBER 2006
ELVIDGE PTY LTD -v- BGC CONSTRUCTION PTY LTD [2006] WASCA 264 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 264 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:76/2005 | 18 AUGUST 2006 | |
| Coram: | ROBERTS-SMITH JA McLURE JA BUSS JA | 1/12/06 | |
| 14/01/07 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Costs awarded to respondent | ||
| B | |||
| PDF Version |
| Parties: | ELVIDGE PTY LTD BGC CONSTRUCTION PTY LTD |
Catchwords: | Costs of appeal Turns on own facts |
Legislation: | District Court of Western Australia Act 1969 (WA), s 87(1) Rules of the Supreme Court 1971 (WA), O 24A, O 66 r 10 Supreme Court (Court of Appeal) Rules 2005 (WA), r 5, r 66 |
Case References: | Baresic v Slingshot Holdings Pty Ltd (No 2) [2005] NSWCA 160 Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264 Oshlack v Richmond River Council (1998) 193 CLR 72 Fotheringham v Fotheringham (No 2) (1999) NSWLR 194 Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 Sands & McDougall Wholesale Pty Ltd (In Liq) & Anor v Commissioner of Taxation (Cth) (No 2) [1999] 2 VR 114 Sloane v McDonald & Sutherland, unreported; FCt SCt of WA; Library No 980012; 22 January 1998 South Sydney Council v Morris (No 3) [2001] NSWCA 200 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ELVIDGE PTY LTD -v- BGC CONSTRUCTION PTY LTD [2006] WASCA 264 (S) CORAM : ROBERTS-SMITH JA
- McLURE JA
BUSS JA
DECISION : 15 JANUARY 2007 FILE NO/S : CACV 76 of 2005 BETWEEN : ELVIDGE PTY LTD
- Appellant
AND
BGC CONSTRUCTION PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER KEEN
Citation : BGC CONSTRUCTION PTY LTD -v- ELVIDGE PTY LTD [2005] WADC 103
File No : CIV 1840 of 2001
(Page 2)
Catchwords:
Costs of appeal - Turns on own facts
Legislation:
District Court of Western Australia Act 1969 (WA), s 87(1)
Rules of the Supreme Court 1971 (WA), O 24A, O 66 r 10
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5, r 66
Result:
Appeal dismissed
Costs awarded to respondent
Category: B
Representation:
Counsel:
Appellant : Mr M D Cuerden
Respondent : Mr J A Thomson
Solicitors:
Appellant : Holborn Lenhoff Massey
Respondent : Hotchkin Hanly
Case(s) referred to in judgment(s):
Baresic v Slingshot Holdings Pty Ltd (No 2) [2005] NSWCA 160
Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264
Oshlack v Richmond River Council (1998) 193 CLR 72
Case(s) also cited:
Fotheringham v Fotheringham (No 2) (1999) NSWLR 194
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
(Page 3)
Sands & McDougall Wholesale Pty Ltd (In Liq) & Anor v Commissioner of Taxation (Cth) (No 2) [1999] 2 VR 114
Sloane v McDonald & Sutherland, unreported; FCt SCt of WA; Library No 980012; 22 January 1998
South Sydney Council v Morris (No 3) [2001] NSWCA 200
(Page 4)
1 JUDGMENT OF THE COURT: This Court delivered its reasons for decision in this appeal on 1 December 2006 (Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264). The matter was adjourned to enable the parties to make submissions as to the orders to be made, in particular the costs orders. The respondent seeks orders that:
1. The appeal be dismissed.
2. The appellant pay the respondent's costs of the appeal on an indemnity basis.
3. The appellant pay the respondent's costs of preparing and filing the respondent's answer, notwithstanding that it was not filed within the time allowed by the Supreme Court (Court of Appeal) Rules 2005 (WA) ("Court of Appeal Rules") for the filing of that document.
2 Rule 66 of the Court of Appeal Rules provides that a party who does not file a document in accordance with the Rules within the time specified is not entitled to the costs of preparing and filing the document unless the Court of Appeal otherwise orders. The respondent was one day late in filing its answer. The delay is adequately explained and the appellant quite properly does not oppose proposed order 3. We would make the proposed order.
3 The appellant objects to the proposed order for indemnity costs. In the proceedings below, the respondent (plaintiff) made an O 24 offer which was less than the judgment awarded to the respondent as a result of which costs were awarded to the respondent on an indemnity basis from the date of that offer under O 24A r 10(4) of the Rules of the Supreme Court 1971 (WA) ("Supreme Court Rules").
4 The respondent's O 24A offer was made in the District Court proceedings from which the appeal was brought. Order 24A of the Supreme Court Rules applies in District Court proceedings by virtue of s 87(1) of the District Court of Western Australia Act1969 (WA).
5 Rule 49 of the Court of Appeal Rules governs offers of compromise in an appeal. Rule 49 provides that O 24A applies with appropriate amendments to reflect that it is an offer of compromise in an appeal.
6 The policy of O 24A is to encourage a party to whom a fair and reasonable offer of compromise has been made to accept the offer and bring the proceedings to an end. That policy is achieved in r 10 by providing that in specified circumstances the party who made the offer is
(Page 5)
- entitled to costs on an indemnity basis from the date of the offer unless the Court otherwise orders. However, it is apparent from the language of r 10 that the prima facie entitlement to indemnity costs only applies to the costs of the proceedings in which the O 24A offer is made. That is, the O 24A offer made by the respondent in the District Court proceedings does not bind the Court of Appeal in exercising its discretion as to the costs of the appeal. Such an offer may, in appropriate circumstances, be a relevant consideration in the exercise of the Court's discretion as to costs: Baresic v Slingshot Holdings Pty Ltd (No 2) [2005] NSWCA 160.
7 The Court of Appeal is empowered to deal with the costs of the appeal and with the costs of the proceedings below: O 66 r 10 of the Supreme Court Rules and r 5 of the Court of Appeal Rules. Order 24A and other offers aside, the general rule is that a successful party to a proceeding recovers his or her costs on a party/party basis. Ordinarily, indemnity costs are ordered where there has been some unreasonable or delinquent conduct on the part of the party against whom the order is made: Oshlack v Richmond River Council (1998) 193 CLR 72 at 89.
8 In support of its claim for indemnity costs, the respondent relies on its O 24A offer in the District Court proceedings, the fact that the appeal was "all or nothing" and the statement in par 33 of the reasons that there was no arguable basis for shifting legal responsibility for the stabilisation from the appellant to the respondent. That observation relates to one particular of one ground of appeal and does not reflect on the merits of the appeal as a whole. The merits of the appeal in this case is not a factor in favour of an award of indemnity costs. Further, although the appeal was confined to liability, there being no issue as to the quantum of the judgment below, that does not prevent the respondent from providing a financial incentive to the settlement of the appeal which is a separate proceeding to which O 24A also applies. Having regard to all relevant matters, including the respondent's failure to make an offer of compromise in the appeal, we are of the opinion that the costs of the appeal should be assessed on a party/party basis. Accordingly, we order that:
1. The appeal be dismissed.
2. The appellant pay the respondent's costs of the appeal, including the respondent's costs of preparing and filing the respondent's answer, to be taxed.
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