Hankinson as Executrix of the Estate of Gary William Same v Brookview Holdings Pty Ltd
[2004] WASCA 279 (S)
•26 NOVEMBER 2004
HANKINSON as Executrix of the Estate of GARY WILLIAM SAME -v- BROOKVIEW HOLDINGS PTY LTD [2004] WASCA 279 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 279 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:173/2003 | 5 OCTOBER 2004 | |
| Coram: | WHEELER J EM HEENAN J SIMMONDS J | 26/11/04 | |
| 17/06/05 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Costs orders of the trial Judge undisturbed | ||
| B | |||
| PDF Version |
| Parties: | LEAH JOYCE HANKINSON as Executrix of the Estate of GARY WILLIAM SAME BROOKVIEW HOLDINGS PTY LTD |
Catchwords: | Costs Costs of the trial Turns on own facts |
Legislation: | Nil |
Case References: | Hankinson as Executrix of the Estate of Gary William Same v Brookview Holdings Pty Ltd [2004] WASCA 279 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HANKINSON as Executrix of the Estate of GARY WILLIAM SAME -v- BROOKVIEW HOLDINGS PTY LTD [2004] WASCA 279 (S) CORAM : WHEELER J
- EM HEENAN J
SIMMONDS J
DECISION : 17 JUNE 2005 FILE NO/S : FUL 173 of 2003 BETWEEN : LEAH JOYCE HANKINSON as Executrix of the Estate of GARY WILLIAM SAME
- Appellant
AND
BROOKVIEW HOLDINGS PTY LTD
Respondent
Catchwords:
Costs - Costs of the trial - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Costs orders of the trial Judge undisturbed
Category: B
Representation:
Counsel:
Appellant : Ms C H Thompson
Respondent : Mr B P Wheatley
Solicitors:
Appellant : Freehills
Respondent : Nicholson Clement
Case(s) referred to in judgment(s):
Hankinson as Executrix of the Estate of Gary William Same v Brookview Holdings Pty Ltd [2004] WASCA 279
Case(s) also cited:
Nil
(Page 3)
- WHEELER J:
Background
1 This was an appeal from the District Court which was allowed in part by this Court. The facts were set out in the Court's decision in Hankinson as Executrix of the Estate of Gary William Same v Brookview Holdings Pty Ltd [2004] WASCA 279. This supplementary decision is in relation to the question of the costs of the trial.
2 The District Court proceedings began on 1 June 2001. The trial was adjourned sine die that day on the application of the plaintiff ("Brookview") to enable it to produce financial documents supporting the expert evidence upon which it sought to rely. The defendant (Mr Same) died before the matter was relisted and the executrix of his estate ("Hankinson") was substituted as the defendant in the proceedings.
3 The trial was relisted to resume on 1 August 2003. On 30 and 31 July 2003, just prior to the trial resuming, offers were made by Ms Hankinson to settle. Brookview rejected those offers. The trial was concluded on 1 August 2003. Judgment was ordered for Brookview in the sum of $41,700, including $11,700 interest.
4 Following trial the parties made submissions as to costs. The learned trial Judge ordered that Hankinson pay Brookview's costs of the trial to be taxed, but with no allowance to be made for the costs associated with Brookview recalling or reproofing their witnesses and that Brookview pay the costs of the adjournment on 1 June 2001 and the costs thrown away by reason of the adjournment.
5 On 26 November 2004 we allowed the appeal in part and ordered that the District Court judgment be varied to substitute judgment for Brookview in an amount of $28,100; that the appeal be otherwise dismissed and that Brookview's notice of contention be dismissed.
6 An order was made that each party was to bear its own costs of the appeal. On the question of the costs of the trial, we gave leave for each party to file written submissions and any supporting affidavits. The question of the costs of the trial was adjourned to be determined on the papers. These are our reasons for decision in relation to that issue.
(Page 4)
Issues in relation to costs of the trial
7 Both parties have filed submissions and supporting affidavits in relation to the history of the matter and the question of the costs of the trial.
8 In submissions dated 4 January 2005, counsel for Hankinson argues that the following costs orders should be made in respect of the costs of the trial:
(a) Brookview to pay the costs of the adjournment of the trial on 1 June 2001;
(b) Brookview to pay the costs thrown away by reason of the adjournment; and
(c) subject to the two previous orders, each party bear their own costs of the trial.
9 In submissions dated 14 January 2005, counsel for Brookview seek orders as follows:
(a) Brookview to pay the costs thrown away by reason of the adjournment of the trial on 1 June 2001;
(b) Hankinson to pay Brookview's costs of the action, including any reserved costs and including the application for costs before the trial Judge on 14 January 2004 and 6 February 2004; and
(c) that if orders are made in these terms, then Hankinson should pay Brookview's costs of this application before the Full Court.
10 The short answer to the various contentions of the parties, in my view, is that this is not a case in which it is appropriate to vary the orders already made by the trial Court. Of course, it will often be the case that allowing an appeal, in whole or in part, results in some consequential orders having to be made in relation to the orders made below, including orders as to costs. However, allowing an appeal in whole or in part does not, as I apprehend it, give an appellate court carte blanche to vary all of the orders made in proceedings below, even in circumstances where the reasons for the orders made below have not been the subject of any ground of appeal, or any argument during the course of the appeal.
11 In the present case, the orders which the appellant seeks to vary are orders which were made by the learned trial Judge in the exercise of his
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- discretion, for reasons which have not been the subject of argument before us, and which, in my view, appear to be unaffected by any of the reasons for our decision in this appeal.
12 In relation to the question of the adjournment first, the circumstances leading up to the adjournment are set out in our principal reasons for decision. On 1 June 2001, there was a brief argument before his Honour about the turn which events had taken and the question of what costs consequences should flow. His Honour expressed his view in the following terms:
"Well, I think in the normal course of events, as Ms Thompson says, the defendant is entitled to the costs of the adjournment and the costs thrown away. That doesn't necessarily mean the cost of today's attendance. It means the costs additionally incurred by the fact of the adjournment, as I understand it. The costs of today will be in the cause in the normal event."
13 For that reason, his Honour in due course ordered that Brookview pay the costs thrown away by reason of the adjournment. It seems reasonably clear from the transcript of the argument, that his Honour had in mind that, the adjournment having been occasioned by the Brookview's failure to discover documents, it was appropriate that any costs thrown away be the responsibility of the Brookview. No argument was addressed to us in relation to this issue during the course of the appeal, and nothing in our reasons for decision in the appeal would affect in any way that exercise of discretion which, with respect, would appear to have been entirely appropriate.
14 So far as the costs of the trial are concerned, the position is somewhat more difficult. As I have noted, offers of settlement were made on the two days leading up to the resumed hearing. There appears to have been some ambiguity in the offers made, and during the course of argument on 6 February 2004, his Honour noted that it was not at first blush clear whether the offer first made was exclusive or inclusive of costs, although that issue appears to have been clarified during the course of the correspondence.
15 The issue for his Honour was whether, in the exercise of his discretion, having regard to the result achieved by the plaintiff at trial, and having regard to that correspondence, it was appropriate to vary the usual order as to costs. The entirety of the argument in relation to that issue has not been placed before us, but there is available in an affidavit of
(Page 6)
- Ms Visscher sworn 10 December 2004, a copy of the transcript of his Honour's reasons in relation to that issue. Three principal issues appear to have been canvassed, they being:
• Whether the offer first made was a "Calderbank" offer.
• Whether the result achieved at trial was or was not better than the offer initially made.
• The relevance of the timing of the offer or offers.
17 Finally, his Honour noted that the negotiations, being made at the time at which they were made and in the form in which they were made, allowed Brookview very little time for consideration. It was his Honour's view that, having regard to those circumstances, Brookview should be entitled to subsequent costs of the action, even though Brookview had rejected the offer.
18 It is the question of the alleged difference between the result achieved after the appeal, and the offer initially made, which now leads the appellant to argue that his Honour's order as to costs of the trial should be varied. After the reduction in respect of the goodwill resulting from the appeal, it was agreed between the parties that the appropriate judgment sum, inclusive of interest, was $28,100. There then, of course, arose an issue as to whether that sum, together with an appropriate amount for costs, was an amount which was less than or equal to the amount of the offer made. Ms Visscher deposes that she estimated that costs in relation to work done by the solicitors for Brookview totalled a little over $18,000. That calculation was based upon certain assumptions, which are challenged by Brookview. In those circumstances, it is still not clear whether the result achieved by the respondent, even after the appeal, was more or less favourable than the amount of the offer.
19 Further, Brookview points out that, having been the successful plaintiff, it would still be entitled to costs of the action prior to the making of the offers; that is, until now. In any event, Brookview points to the
(Page 7)
- lateness of the offer as being a reason why it cannot be said that Brookview acted unreasonably in rejecting it; this, of course, was one of the matters upon which his Honour the learned trial Judge relied.
20 It appears to me that the appellant's application in respect of the costs of the trial seeks an order different from that made by the learned trial Judge, in circumstances where the factors which led him to exercise his discretion in the way that he did cannot be said to have been materially and significantly affected by the result of the appeal, and in circumstances where the appeal contained no ground directly challenging the exercise of that discretion. For those reasons, I am of the view that it would not be appropriate to vary the costs orders made at trial by his Honour.
21 EM HEENAN J: I have had the advantage of reading in draft the decision of Wheeler J. I agree with her Honour's reasons and have nothing further to add.
22 SIMMONDS J: I have had the advantage of seeing the draft judgment of Wheeler J. For the reasons she gives, I too am of the view it would not be appropriate to vary the costs orders made at the trial of this matter by his Honour the learned trial Judge.
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