| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HAWKER as Trustee of Stewart Hawker Superannuation Trust Fund -v- OCEAN STYLE PTY LTD [2014] WADC 39 (S) CORAM : STAUDE DCJ HEARD : 7, 8, 9 & 10 OCTOBER 2013 & 1 APRIL 2014 DELIVERED : 1 APRIL 2014 SUPPLEMENTARY
DECISION : 10 APRIL 2014 FILE NO/S : CIV 2552 of 2012 BETWEEN : STEWART HAWKER as Trustee of Stewart Hawker Superannuation Trust Fund First plaintiff
STEWART HAWKER
Second plaintiff
AND
OCEAN STYLE PTY LTD
First defendant
DAMIEN FRANCIS GILES TURNEY
Second defendant
Catchwords: Costs - Costs of claims and crossclaim - Costs of issues - Turns on own facts Legislation: Nil Result: Orders for costs made
Representation: Counsel:
First plaintiff : Mr E Greaves
Second plaintiff : Mr E Greaves
First defendant : Ms E Scarff
Second defendant : Ms E Scarff
Solicitors:
First plaintiff : Susan Brook
Second plaintiff : Susan Brook
First defendant : Clement & Co
Second defendant : Clement & Co
Case(s) referred to in judgment(s):
Nil Introduction 1 On 1 April 2014 I delivered judgment in the following terms: 1. The first defendant do pay the first plaintiff the sum of $130,744. 2. The first plaintiff's claim for a declaration of a resulting trust be dismissed. 3. The second plaintiff's claim against the second defendant for damages for misleading or deceptive conduct be dismissed. 4. The first defendant's claim against the second plaintiff for work done pursuant to the dam contract be allowed in the sum of $26,692. 2 Upon delivering my reasons for decision I heard from counsel for the parties with respect to costs. 3 Counsel for the plaintiffs sought the costs of the action on the basis that the first plaintiff was successful in the claim pursuant to the loan agreement. He conceded that the second plaintiff was liable for the costs of the first defendant's cross-claim, but argued that a negligible sum had been recovered over and above what the second plaintiff admitted and that the costs should be taxed according to the Magistrates Court Civil Scale of Costs 2012. He observed that there had been no dispute that the first defendant was entitled to reasonable reward for the rehabilitation work. As an alternative outcome counsel submitted that there be no order for costs. 4 Counsel for the defendants submitted that the first defendant had admitted liability for the loan amount and had otherwise been successful. The second defendant had been successful with respect to the second plaintiff's damages claim. The first defendant had been successful on the cross-claim. He sought the costs of the action and the cross-claim.
Order 66 r 1: The discretion to award costs 5 Order 66 r 1(1) of the Rules of the Supreme Court 1971 provides that the costs of and incidental to all proceedings shall be in the discretion of the court, but that the court will generally order that the successful party to any action or matter recover its costs. 6 Order 66 r 1(2) provides that if the court is of the opinion that the conduct of a party before or after the commencement of litigation or that a claim by a party for an unreasonably excessive amount has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs wholly or in part, and may order it to pay the costs of an unsuccessful party either wholly or in part. 7 Order 66 r 1(3) provides that where a party, though generally successful in an action has, by the introduction of some issue or issues on which it has failed, increased the costs, the court may order the party to pay the costs of such issue or issues.
First plaintiff's claims against first defendant 8 The first plaintiff was partially successful. Although he failed in his claim for declaration of a resulting trust in respect of the two scrapers purchased by the first defendant with the loan amount, he obtained judgment for the loan amount of $100,000, interest for the term of the loan of $10,000, and prejudgment interest. 9 The first plaintiff had also pleaded a claim for a declaration of a resulting trust and for an account of profits with respect to a D8 bulldozer which was not proceeded with at trial and deleted by amendment at the end of the trial. 10 At trial the only issue with respect to the loan was whether the rate of interest stipulated in the loan agreement for the second half of the eight-month term, effectively 36% per annum, was a penalty. The first defendant's liability for the loan amount and interest of $5,000 for the first four months of the term was admitted in pars 8 and 15 of its defence. 11 The first defendant, however, did not concede in its pleading, or by way of an offer to compromise pursuant to O 24A or by Calderbank letter, any interest at all for the second half of the term of the loan as it might have done in order to put the first plaintiff at risk as to costs. The final judgment was therefore slightly more favourable to the first plaintiff than any judgment it might have obtained on the first defendant's admission. 12 I would order that the first plaintiff have his costs of the action with respect to the claim on the loan agreement, notwithstanding that he was not successful with respect to the penalty issue. 13 The claim for the declaration of resulting trust was unmerited. I would order that the first plaintiff pay the first defendant's costs of and incidental to that claim, including the costs of the application for the injunction in the Supreme Court.
Second plaintiff's claim against second defendant 14 The claim of the second plaintiff was a discrete claim against the second defendant for damages for misleading or deceptive conduct. It failed. The second defendant should have the costs of that claim.
First defendant's cross-claim against second plaintiff 15 The first defendant's claim was based on a contract to do work at certain rates on the basis of which it invoiced the second plaintiff the claimed sum of $169,259. Its claim on this basis was disallowed, but the court found that there was a contract to do dam repair work and other work for a sum in the range of $30,000 - $35,000. 16 Based on what work was shown to have been done before the second plaintiff brought the contract to an end, and what the second plaintiff had actually paid to that point, the first defendant was found to be entitled to payment of $4,414. 17 The first defendant also recovered $18,425 for work done at the second plaintiff's request to rehabilitate the gravel pit, based not on an alleged agreed rate of hire of a scraper as claimed, but on a quantum meruit. 18 The court disallowed the first defendant's claims in respect of the construction of a gravel road on the property, for excavation and removal of gravel and for the cost of mobilising and demobilising a scraper for that work. 19 The first defendant's claim was substantially unsuccessful. It recovered in total only $22,839 plus interest. 20 Most of the time occupied by the trial concerned the first defendant's cross-claim. The pleading of the claim was defective and it raised issues that prolonged the proceedings. The second defendant was not a truthful witness. 21 The first defendant should be deprived of its costs.
Orders 22 The orders for costs are as follows: 1. The first defendant do pay the first plaintiff's costs of the action with respect to the claim for the loan amount. 2. The first plaintiff do pay the first defendant's costs with respect to the claim for a declaration of a resulting trust. 3. The second plaintiff do pay the second defendant's costs with respect to the claim for damages for misleading or deceptive conduct. 4. There be no order for costs with respect to the first defendant's claim for a quantum meruit. 5. There be liberty to apply within 30 days for any other order that may be sought.
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