GALAXY RESOURCES LTD -v- ARRINOOKA PTY LTD [2002] WASC 70

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 70
Case No:	COR:428/2001	Heard:	18 FEBRUARY 2002
Coram:	MASTER BREDMEYER	Delivered:	8/04/02
No of pages:	7	Judgment Part:	1 of 1
Result:	Costs allowed on an indemnity basis
Category:	B
PDF Version

Parties:	GALAXY RESOURCES LTD (ACN 071 976 442) ARRINOOKA PTY LTD (ACN 009 228 522)
Catchwords:	Costs on setting aside a statutory demand Indemnity costs
Legislation:	Nil
Case References:	Nil Brolrick Pty Ltd v Sambah Holdings Pty Ltd [2001] NSWSC 1171 Devonworth Enterprises Pty Ltd v Sydney Olympic Sporting Club Ltd & Ors; Windereen Holdings Pty Ltd v Sydney Olympic Sporting Club Ltd & Ors [2001] NSWSC 834 Dobb v Hacket (1993) 10 WAR 532 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Grbavac v Hart [1997] 1 VR 154 Intergraph v Tess Lawrence (1996) 19 ASCR 523 Kimberley Oil NL v Geological & Corporate Management Pty Ltd [2000] WASC 294 Mandarin International Developments Pty Ltd v Growthcorp (Australia) Pty Ltd (1998) 143 FLR 408 Map Plumbing Services Pty Ltd v BB Enterprises Pty Ltd (2000) 35 ACSR 35 Mibor Investments Pty Ltd v Commonwealth Bank of Australia (1993) 11 ACLC 1062 Nationwide Pacific NL v Range Resources Ltd [2001] WASC 82 New South Wales Insurance Ministerial Corp v Reeve (1993) 42 NSWLR 100 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 Polaroid Australia Pty Ltd v Minicomp Pty Ltd (1998) 16 ACLC 511 Redglove Holding Pty Ltd v GNE & Associates Pty Ltd [2001] NSWSC 867

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GALAXY RESOURCES LTD -v- ARRINOOKA PTY LTD [2002] WASC 70 CORAM : MASTER BREDMEYER HEARD : 18 FEBRUARY 2002 DELIVERED : 8 APRIL 2002 FILE NO/S : COR 428 of 2001 BETWEEN : GALAXY RESOURCES LTD (ACN 071 976 442)

Plaintiff

AND

ARRINOOKA PTY LTD (ACN 009 228 522)

Defendant

Catchwords:

Costs on setting aside a statutory demand - Indemnity costs

Legislation:

Nil

Result:

Costs allowed on an indemnity basis

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr D E Grondal

Defendant : Mr B H Taylor

Solicitors:

Plaintiff : Pullinger Readhead Stewart

Defendant : Talbot & Olivier

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

Nil

Case(s) also cited:

Brolrick Pty Ltd v Sambah Holdings Pty Ltd [2001] NSWSC 1171
Devonworth Enterprises Pty Ltd v Sydney Olympic Sporting Club Ltd & Ors; Windereen Holdings Pty Ltd v Sydney Olympic Sporting Club Ltd & Ors [2001] NSWSC 834
Dobb v Hacket (1993) 10 WAR 532
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Grbavac v Hart [1997] 1 VR 154
Intergraph v Tess Lawrence (1996) 19 ASCR 523
Kimberley Oil NL v Geological & Corporate Management Pty Ltd [2000] WASC 294
Mandarin International Developments Pty Ltd v Growthcorp (Australia) Pty Ltd (1998) 143 FLR 408
Map Plumbing Services Pty Ltd v BB…

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: [2002] WASC 70
Decision Date

CaseChat Overview and Summary

Galaxy Resources Ltd (the plaintiff) brought an application to set aside a statutory demand issued by Arrinooka Pty Ltd (the defendant) for $60,301.72, which the defendant claimed was owed by the plaintiff for services provided. The case was heard by Master Bredmeyer of the Supreme Court of Western Australia and a decision on costs was reserved. The plaintiff argued that the debt was genuinely disputed, and the defendant was aware of this prior to issuing the statutory demand. The defendant maintained that an oral agreement existed for the plaintiff to pay the claimed amount.

The legal issues for the court to decide were whether the statutory demand should be set aside and, if so, whether indemnity costs should be awarded to the plaintiff. The court considered whether the defendant knew the debt was disputed, whether the plaintiff had a genuine dispute about the existence of the oral agreement, and whether the plaintiff's offer to withdraw the application on certain conditions should have been accepted by the defendant.

The court found that the statutory demand should be set aside as the plaintiff had a genuine dispute about the existence of the oral agreement and the defendant was aware of this dispute. The court also found that the plaintiff's offer to withdraw the application on certain conditions should have been accepted by the defendant. The court awarded indemnity costs to the plaintiff, stating that special circumstances were needed to justify such an award and that the cumulative effect of the factors in the case warranted it.

The final orders were that the defendant pay the plaintiff's costs of the application, including any reserved costs, on an indemnity basis, to be taxed if not agreed.

Orders