Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HANCOCK PROSPECTING PTY LTD -v- WRIGHT PROSPECTING PTY LTD [2018] WASCA 185

CORAM:   MAZZA JA

MITCHELL JA

BEECH JA

HEARD:   12 SEPTEMBER 2018

DELIVERED          :   24 OCTOBER 2018

FILE NO/S:   CACV 103 of 2017

BETWEEN:   HANCOCK PROSPECTING PTY LTD

Appellant

AND

WRIGHT PROSPECTING PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   LE MIERE J

Citation: WRIGHT PROSPECTING PTY LIMITED -v- HANCOCK PROSPECTING PTY LIMITED [No 13] [2017] WASC 286

File Number            :   CIV 1279 of 2001


Catchwords:

Appeal against primary judge's construction of trial judge's costs orders - Where plaintiff awarded general costs of the action subject to a specific order giving the defendant the costs of a particular claim on which the plaintiff failed - Whether primary judge erred in holding that costs associated with evidence relevant to proving damages were payable to the plaintiff under the general order or to the defendant under the specific order - Whether objective or subjective test to be applied to ascertaining the purpose for which evidence was adduced - Construction and interpretation - Whether primary judge erred in concluding that trial judge held that claim for damages in lieu of specific performance was open to be brought and pursued when not claimed in the writ or pleading

Legislation:

Rules of the Supreme Court 1971 (WA) O 66 r 1(3), r 2(a)
Supreme Court Act 1935 (WA), s 25(10)

Result:

Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant : Mr J C Giles SC & Mr C E Bannan
Respondent : Mr R M Smith SC & Mr T N Owen

Solicitors:

Appellant : Corrs Chambers Westgarth
Respondent : Clayton Utz

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

Ailakis v Olivero (No 2) [2014] WASCA 127; (2014) 100 ACSR 524

Arthur Young (a firm) v Brunswick NL [1998] VSCA 87; [1999] 1 VR 387

Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300

Betts v Neilson (1868) LR 3 Ch App 429

Brown v Heffer (1967) 116 CLR 344

Catton v Wyld (1863) 32 Beav 266; 55 ER 105

Della-Vedova v State Energy Commission (1990) 2 WAR 561

Emmerton v Trustees, Executors and Agency Co Ltd (1896) 2 ALR 281

Godden v Alford [1960] WAR 235

Griffin v Mercantile Bank (1890) 11 LR (NSW) Eq 231

Halligan v Lawson (1922) 22 SR (NSW) 501

Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29

Jones v Curling (1884) 13 QBD 262

Mahlo v Westpac Banking Corp Ltd [1999] NSWCA 358

McKenna v Richey [1950] VLR 360

Medway Oil and Storage Co Ltd v Continental Contractors Ltd [1929] AC 88

Rawson v Hobbs (1961) 107 CLR 466

Smith v Madden (1946) 73 CLR 129

Tamplin v James (1880) 15 Ch D 215

TM Burke Estates Pty Ltd…

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Details
Case
[2018] WASCA 185
Decision Date

CaseChat Overview and Summary

Hancock Prospecting Pty Ltd (HPPL) appealed against the primary judge's interpretation of the trial judge's costs orders in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 11) [2011] WASC 74. The primary judge found that HPPL was to pay Wright Prospecting Pty Ltd's (WPPL) costs of the claim and counterclaim, subject to an order for WPPL to pay HPPL's costs of a particular claim on which WPPL failed. The specific dispute was whether the primary judge was correct to hold that certain costs were payable under the general order or the specific order. Additionally, the court needed to determine whether an objective or subjective test should be applied to ascertain the purpose for which evidence was adduced, and whether the primary judge erred in concluding that the trial judge held that a claim for damages in lieu of specific performance was open to be brought and pursued despite it not being claimed in the writ or pleading.

The court found that the primary judge's approach to interpreting the trial judge's costs orders was correct. The court held that the primary judge applied the correct legal principles in determining the allocation of costs between the parties. The court held that an objective test should be applied to ascertain the purpose for which evidence was adduced. Furthermore, the court found that the primary judge did not err in concluding that the trial judge held that a claim for damages in lieu of specific performance was open to be brought and pursued, even though it was not claimed in the writ or pleading.

The appeal was dismissed. The primary judge's interpretation of the trial judge's costs orders was affirmed. The court held that the primary judge applied the correct legal principles and that an objective test should be applied to ascertain the purpose for which evidence was adduced. The court also held that the primary judge did not err in concluding that the trial judge held that a claim for damages in lieu of specific performance was open to be brought and pursued, even though it was not claimed in the writ or pleading.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The trial judge published written reasons on 5 March 2010 (Liability Decision).[8] His Honour's approach is considered in more detail below. At this point it is sufficient to note that the trial judge found that:(1)WPPL had validly exercised the option, which was valid and enforceable. (2)HPPL was obliged to do all things necessary to enable WPPL to have the benefit of the transfer of HPPL's interest in the Rhodes Ridge Tenements. (3)The court should grant declaratory relief and order specific performance of cl 4 of the 1984 Agreement. (4)While WPPL's Unconscionability Claim did not arise in these circumstances, it had not been established. (5)A counterclaim by HPPL was not made out. (6)A provisional assessment of damages should not be made. The trial judge invited the parties to prepare and agree a minute of orders giving effect to his Honour's reasons.[8] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 9) [2010] WASC 44. Following a further exchange of written submissions, the trial judge made orders on 22 March 2011 (Final Orders). The trial judge published supplementary reasons for making those orders (Final Orders Decision).[9] Orders 1 - 3 of the Final Orders made declarations, to the following general effect:(1)WPPL had validly exercised the option under cl 4 of the 1984 Agreement.(2)The partnership's interest in the Rhodes Ridge Tenements remained a 'WPPL interest' as defined in the 1984 Agreement.(3)The particular tenements comprising the 'WPPL interest' were specified.[9] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 11) [2011] WASC 74. Orders 4 and 5 of the Final Orders provided for the specific performance of cl 4 of the 1984 Agreement, while order 6 gave liberty to apply in relation to the implementation of those orders. Orders 7 and 8 provided for the suspension of the enforcement of orders 4 and 5 until further order or the disposition of any appeal. Orders 10 and 11 (Costs Orders), the interpretation of which is the subject of this appeal, provided:10.Subject to order 11, [HPPL] to pay [WPPL's] costs of the claim and counterclaim, including any reserved costs, to be taxed if not agreed.11.[WPPL] do pay [HPPL's] costs of [WPPL's] 'unconscionability claim', pleaded at paragraphs 22A - 22M of its statement of claim, to be taxed if not agreed.Order 12 removed scale limits, while order 13 gave the parties liberty to apply as to the implementation of orders 10 to 12. HPPL's appeal against the Final Orders was dismissed by this court on 30 October 2012.[10] At the same time, the court dealt with a cross-appeal by WPPL. Relevantly for present purposes, grounds 1 ‑ 10 of the cross-appeal, which challenged the trial judge's findings in relation to the Unconscionability Claim, were dismissed.[11] Ground 13, which sought an order that HPPL pay WPPL's costs of the Unconscionability Claim, was dismissed on the basis that it was predicated on the success of grounds 1 - 10 of the cross-appeal.[12] Except to a limited, and presently immaterial, extent, the cross-appeal was dismissed.[10] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29 (Appeal Decision).[11] Appeal Decision [290] - [315].[12] Appeal Decision [320].

Ratio Decidendi

Legal Principle Established

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