Hanson Construction Materials Pty Ltd v Calbaro - [2024] WASC 338

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HANSON CONSTRUCTION MATERIALS PTY LTD -v- CALABRO [2024] WASC 338
CORAM:   WHITBY J
HEARD:   ON THE PAPERS
DELIVERED          :   11 SEPTEMBER 2024
FILE NO/S:   CIV 1650 of 2024
BETWEEN:   HANSON CONSTRUCTION MATERIALS PTY LTD
Plaintiff
AND
GIUSEPE SANTO CALABRO
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Costs - Application for indemnity costs - Extension of caveat pursuant to s 138C of the Transfer of Land Act 1893 (WA) - Indemnity costs pursuant to contractual terms - Indemnity costs to reflect disapproval of first defendant's conduct

Legislation:

Supreme Court Act 1935 (WA)
Transfer of Land Act 1893 (WA)

Result:

Plaintiff's application for indemnity costs granted

Category: B

Representation:

Counsel:

Plaintiff	:	P J Hannan
First Defendant	:	J R Marzec
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Patane Lawyers
First Defendant	:	Zafra Legal
Second Defendant	:	No appearance

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

Bank of Western Australia Ltd v Marsh [2000] WASC 208
Bank of Western Australia Ltd v Ponga (unreported) (Master Sanderson) Supreme Court of WA Library No. 980697
Boon v Burt [2020] WASC 64 (S)
Chateau Constructions (Aust) Ltd v Zepinic [2013] NSWSC 1326
Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397
Gamba Holdings UK Ltd v Minories Finance Ltd [1993] Ch 171
Oswal v Carson (No 4) [2011] VSC 434
Polaris Properties (WA) Pty Ltd as trustee for The Polaris Trust v Pickworth [2019] WASC 119 (S)
Rumball v Mortimore [2000] WASC 126
Yara Australia Pty Ltd v Oswal [2012] WASCA 204

WHITBY J:

Hanson Construction Materials Pty Ltd, the plaintiff, commenced this action to extend the operation of caveat No. 9891217 (Caveat) pursuant to s 138C of the Transfer of Land Act 1893 (WA) (TLA).
On 19 February 2024, the Caveat was registered by the plaintiff against Apartment 10, The Bellevue, 18 Bellevue Terrace, West Perth WA 6006 (Apartment 10). The first defendant, Giusepe Calabro, is the registered proprietor of Apartment 10.
On 20 May 2024, the Registrar of Titles, the second defendant, issued a notice to the plaintiff under s 138B of the TLA advising that unless proceedings were commenced, the Caveat would lapse. This notice was issued upon the application of the first defendant.
The Caveat would have lapsed on 13 June 2024, unless, before that time, the second defendant was served with a copy of an order of this court extending its operation.
This action was commenced by originating summons filed on 4 June 2024. On 7 June 2024, I made orders extending the operation of the Caveat until further order of the court and made programming orders for the final hearing of the action. The action was listed for final hearing on 1 August 2024.
On 8 July 2024, the solicitors for the first defendant informed the solicitors for the plaintiff that the first defendant would no longer challenge the extension of the Caveat. However,…

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: [2024] WASC 338
Decision Date: 11 SEPTEMBER 2024

CaseChat Overview and Summary

In the case of Hanson Construction Materials Pty Ltd v Calbaro, Hanson, the plaintiff, sought indemnity costs from the defendants, Calbaro, for the extension of a caveat. The dispute arose from a legal matter involving the Transfer of Land Act 1893 (WA), specifically section 138C, which pertains to the extension of caveats. Hanson argued that Calbaro's conduct warranted indemnity costs, both due to the contractual terms and the court's disapproval of Calbaro's actions.

The primary legal issues before the court were whether the contractual terms permitted indemnity costs and if the court could award such costs to reflect its disapproval of Calbaro's conduct. The court had to interpret the contractual provisions and assess whether the costs were justified under the circumstances. The court also considered the appropriate amount of indemnity costs, taking into account the conduct of the parties and the impact of the litigation on the plaintiff.

The court held that the contractual terms did allow for indemnity costs, and it was within the court's discretion to award such costs to reflect its disapproval of Calbaro's conduct. The court found that the first defendant's actions were unreasonable and that the plaintiff had been significantly inconvenienced as a result. Consequently, the court awarded indemnity costs to Hanson, reflecting its disapproval of the first defendant's conduct. The exact amount of the costs was determined based on the specific circumstances of the case and the impact on the plaintiff.

Orders