Greenco Pty Ltd v Wilden Pty Ltd

[2000] WASCA 2

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   GREENCO PTY LTD -v- WILDEN PTY LTD [2000] WASCA 2

CORAM:   KENNEDY J

PIDGEON J

HEARD:   WRITTEN SUBMISSIONS

DELIVERED          :   20 JANUARY 2000

FILE NO/S:   FUL 133 of 1995

BETWEEN:   GREENCO PTY LTD

Appellant (Plaintiff)

AND

WILDEN PTY LTD
Respondent (Defendant)

Catchwords:

Costs - Application by respondent for stay of execution - Appellant successful on appeal - Appellant entitled to costs of application for stay in the District Court and of application for remittal of application for stay to the Supreme Court - Turns on own facts

Legislation:

Nil

Result:

Appellant's application for costs granted

Representation:

Counsel:

Appellant (Plaintiff)      :     Mr G R Dean

Respondent (Defendant) :     Mr K M Penkin

Solicitors:

Appellant (Plaintiff)      :     Bennett & Co

Respondent (Defendant) :     Kevin Penkin & Associates

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

Nil

Case(s) also cited:

Barker & Co v Hemming (1880) 5 QBD 609

1. KENNEDY J:  For the brief reasons expressed by Pidgeon J, I agree that the costs in this matter should be dealt with as sought by the appellant in its minute of proposed orders as to costs dated 21 July 1998.  With the exception of the application for the adjournment of the appeal, referred to in par 2 of the minute, the appellant was entirely successful and it should be entitled to its costs accordingly.  Those costs should include the costs of remitting the matter from the District Court to the Supreme Court.

2. As to the set‑off proposed in par 4.2 of the minute, it is appropriate for this Court to make that order rather than to require the parties to re‑argue the point before the Taxing Master.  This issue has already been fully argued in the written submissions.

3. PIDGEON J:  On 18 March 1998 this Court published reasons for judgment as to the costs orders which should be made (Library No 980120B).  The appellants are seeking further orders as to costs which it is claimed were not included in the order made by the court.  The orders sought appear in the attached minute of proposed orders.  They include the costs of remitting the matter from the District Court to the Supreme Court.

4. The decision appealed from was a decision of a Master of this Court and the costs not covered are the costs of having it remitted from the District Court to this Court.  The basis of the remission was the fact that a winding up order had been made.  I said in the earlier reasons that the appellant is entitled to the costs of the appeal and the costs of the initial application before the Master.  This was intended to include the costs of remitting the action from the District Court to the Master as I would see that as a matter as incidental to the costs.  It is submitted on behalf of the respondent that the remitter application (Civ 1622 of 1995) is a separate action that was not subject to appeal.  In my view O 66 r 10(2) is wide enough to cover an application of this type in the further costs sought.  It is part of the costs giving rise to the appeal "and of the proceedings connected with it".  There will be orders in the terms of the minute.