Fugro Spatial Solutions Pty Ltd v Cifuentes
[2011] WASCA 102 (S)
•20 APRIL 2011
FUGRO SPATIAL SOLUTIONS PTY LTD -v- CIFUENTES [2011] WASCA 102 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 102 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:150/2009 | 9-10 NOVEMBER 2010 & ON THE PAPERS | |
| Coram: | MARTIN CJ McLURE P MAZZA J | 20/04/11 | |
| 10/06/11 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeals allowed in part Sixth respondents' cross-appeal dismissed Seventh respondent's cross-appeal allowed in part Sixth and seventh respondents to pay to the first and second appellants 80% of the costs of the appeals in CACV 150 of 2009 and CACV 151 of 2009, the sixth respondents' cross-appeal and the seventh respondent's cross-appeal The first and second appellants' costs to be apportioned as to 20% to the sixth respondents and 80% to the seventh respondent | ||
| B | |||
| PDF Version |
| Parties: | FUGRO SPATIAL SOLUTIONS PTY LTD ALEC PENBERTHY MALCOLM ANTHONY CIFUENTES MICHAEL BRIAN KNUBLEY JULIE ANNE WARRINER JANET GRAHAM OZAN PERINCEK NAUTRONIX (HOLDINGS) PTY LTD L-3 COMMUNICATIONS NAUTRONIX LTD AARON BARCLAY |
Catchwords: | Costs Where successful party increased costs by the introduction of some issue or issues on which he failed Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 1(3) Trade Practices Act 1974 (Cth) |
Case References: | Amaca Pty Ltd v Moss [2007] WASCA 162(S) Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FUGRO SPATIAL SOLUTIONS PTY LTD -v- CIFUENTES [2011] WASCA 102 (S) CORAM : MARTIN CJ
- McLURE P
MAZZA J
DECISION : 10 JUNE 2011 FILE NO/S : CACV 150 of 2009
- CACV 151 of 2009
- First Appellant
ALEC PENBERTHY
Second Appellant
AND
MALCOLM ANTHONY CIFUENTES
First Respondent
MICHAEL BRIAN KNUBLEY
Second Respondent
JULIE ANNE WARRINER
Third Respondent
JANET GRAHAM
Fourth Respondent
- OZAN PERINCEK
Fifth Respondent
NAUTRONIX (HOLDINGS) PTY LTD
L-3 COMMUNICATIONS NAUTRONIX LTD
Sixth Respondents
AARON BARCLAY
Seventh Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J
Citation : CIFUENTES -v- FUGRO SPATIAL SOLUTIONS PTY LTD [2009] WASC 316
File No : CIV 1312 of 2008, CIV 2279 of 2009
Catchwords:
Costs - Where successful party increased costs by the introduction of some issue or issues on which he failed - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 1(3)
Trade Practices Act 1974 (Cth)
Result:
Appeals allowed in part
Sixth respondents' cross-appeal dismissed
Seventh respondent's cross-appeal allowed in part
(Page 3)
Sixth and seventh respondents to pay to the first and second appellants 80% of the costs of the appeals in CACV 150 of 2009 and CACV 151 of 2009, the sixth respondents' cross-appeal and the seventh respondent's cross-appeal
The first and second appellants' costs to be apportioned as to 20% to the sixth respondents and 80% to the seventh respondent
Category: B
Representation:
Counsel:
First Appellant : Mr D J Fagan SC & Ms K J Levy
Second Appellant : Mr D J Fagan SC & Ms K J Levy
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Fourth Respondent : No appearance
Fifth Respondent : No appearance
Sixth Respondents : Mr M J McCusker QC & Mr A Golem
Seventh Respondent : Mr H J Langmead SC & Mr B J Morgan
Solicitors:
First Appellant : SRB Legal
Second Appellant : SRB Legal
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Fourth Respondent : No appearance
Fifth Respondent : No appearance
Sixth Respondents : Freehills
Seventh Respondent : DLA Phillips Fox
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Moss [2007] WASCA 162(S)
Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102
(Page 4)
1 MARTIN CJ: I agree with the reasons of McLure P.
2 McLURE P: On 20 April 2011, the court delivered its reasons for judgement in Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102. The parties who participated in the appeals have filed written submissions as to the orders that should be made to give effect to the reasons. The parties are agreed as to the substantive orders but disagree on the costs orders.
3 The appellants claimed in the appeals that the trial judge erred (1) in finding that the second appellant breached his duty of care; (2) in apportioning liability as to one-third to the seventh respondent and two-thirds to the second appellant; (3) in holding that the second appellant owed to the sixth respondents a duty to take reasonable care to prevent the company suffering pure economic loss; and (4) in holding that the seventh respondent owed no duty of care to the sixth respondents for pure economic loss. The appellants failed on ground 1, succeeded on grounds 2 and 4 and succeed in part on ground 3.
4 The sixth respondents failed in their cross-appeal which concerned the implication and breach of warranties in the Trade Practices Act 1974 (Cth). The seventh respondent was unaffected by and did not participate in this cross-appeal.
5 Grounds 1 and 2 of the seventh respondent's cross-appeal depended upon him successfully resisting ground 4 of the appeal. Ground 3 was a technical objection to the trial judge's orders which was conceded by the appellants.
6 The appellants seek an order that the sixth and seventh respondents pay their costs of the appeals, the sixth respondents' cross-appeal and the seventh respondent's cross-appeal. They also seek an order that those costs be apportioned as to 20% to the sixth respondents and 80% to the seventh respondent.
7 The sixth respondents seek orders that the appellants pay 80% of the sixth respondents' costs of the appeals and that each party bear their own costs of the sixth respondents' cross-appeal.
8 The seventh respondent contends that the appellants should be awarded 50% of the costs of their appeals, to be apportioned as to 20% to the sixth respondents and 80% to the seventh respondent, that the sixth respondents pay the appellants' costs of the sixth respondents'
(Page 5)
- cross-appeal and that the appellants pay the seventh respondent's costs of his cross-appeal.
9 A court will generally order that the successful party to an appeal recover his costs: O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA). However, where a party though generally successful has, by the introduction of some issue or issues on which he has failed, increased the costs, the court may order such party to pay the costs of such issue or issues: O 66 r 1(3). The exercise of the power in O 66 r 1(3) should be approached broadly and as a matter of impression and without any attempt at mathematical precision which is likely to prove illusory: Amaca Pty Ltd v Moss [2007] WASCA 162(S) [6].
10 The question whether the appellants breached their duty of care, on which the appellants failed, was sufficiently discrete and significant to justify a reduction in the costs awarded to them.
11 There is no justification for departing from the general rule that would require the sixth respondents to pay the appellants' costs of the sixth respondents' cross-appeal.
12 Further, there is no proper justification for the order sought by the seventh respondent that the appellants pay the seventh respondent's costs of his cross-appeal. That cross-appeal depended in large part upon him successfully resisting ground 4 of the appeal. Ground 3 was conceded. In those circumstances, the appellants should have the costs of the seventh respondent's cross-appeal.
13 In order to avoid the additional time and associated costs of attempting to isolate the costs relating to the appeal and the individual cross appeals, it is preferable to make a single costs order reflecting all relevant considerations. I would order that the sixth and seventh respondents pay 80% of the appellants' costs of the appeals and cross-appeals, apportioned as to 20% to the sixth respondents and 80% to the seventh respondent.
14 Thus, the orders will be as follows:
1. The appeals be allowed in part.
2. Paragraphs 4, 5 and 6 of the orders made by Murray J on 4 December 2009 in CIV 1312 of 2008 be set aside and in lieu thereof it be ordered that:
- 2.1 the first, second and third defendants do pay the sixth plaintiffs' damages to be assessed;
2.2 any entitlement of the sixth plaintiffs for damages for economic loss be confined to economic loss occasioned by the injuries to the first, second and fifth plaintiffs.
- 3. As between the first, second and third defendants, liability for the damages and costs payable to the first, second, third, fourth, fifth and sixth plaintiffs be apportioned as to 20% to the first and third defendants and 80% to the second defendant.
4. The sixth respondents' cross-appeal be dismissed.
5. The seventh respondent's cross-appeal be allowed in part.
6. Paragraphs 2 and 3 of the orders made by Murray J on 4 December 2009 in CIV 2279 of 2009 be set aside and in lieu thereof it be ordered that:
6.1 the first defendant do pay to the plaintiff 80% of the damages to be assessed or agreed.
6.2 any entitlement of the plaintiff for damages be confined to the heads of damages particularised in par 9 of the plaintiff's statement of claim dated 15 July 2009.
7. The sixth respondents and seventh respondent do pay to the first and second appellants 80% of the costs of the appeals in CACV 150 of 2009 and CACV 151 of 2009, the sixth respondents' cross-appeal and the seventh respondent's cross-appeal, to be taxed as one bill if not agreed, with a certificate for second counsel.
8. The first and second appellants' costs referred to in Order 7 are to be apportioned as to 20% to the sixth respondents and 80% to the seventh respondent.
15 MAZZA J: I agree with McLure P.
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