Healthy Nut Cafe Pty Ltd v You Even Lift Pty Ltd as trustee for Attrill Family Trust

[2016] WASC 407

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   HEALTHY NUT CAFE PTY LTD -v- YOU EVEN LIFT PTY LTD as trustee for ATTRILL FAMILY TRUST [2016] WASC 407

CORAM:   KENNETH MARTIN J

HEARD:   ON THE PAPERS

DELIVERED          :   15 DECEMBER 2016

FILE NO/S:   CIV 1616 of 2016

BETWEEN:   HEALTHY NUT CAFE PTY LTD

Plaintiff

AND

YOU EVEN LIFT PTY LTD as trustee for ATTRILL FAMILY TRUST
First Defendant

SAMANTHA MAY ATTRILL
Second Defendant

PETER CHARLES ALLAN ATTRILL
Third Defendant

Catchwords:

Practice and procedure - Application for costs - Request for further and better particulars - Request made redundant by amendment to defence - Costs pursued nevertheless - Turns on its own facts

Legislation:

Nil

Result:

Plaintiff's costs in cause

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance

First Defendant              :     No appearance

Second Defendant         :     No appearance

Third Defendant            :     No appearance

Solicitors:

Plaintiff:     Michael Paterson & Associates

First Defendant              :     Kitto & Kitto

Second Defendant         :     Kitto & Kitto

Third Defendant            :     Kitto & Kitto

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

Simmons v Love [No 2] [2016] WASC 167

1. KENNETH MARTIN J:  I am dealing with the plaintiff's application, determined on the papers, seeking its taxed costs associated with requesting, then engaging in conferral concerning, re-requesting and then pursuing further verbal conferral in relation to a quest to obtain particulars from the defendants concerning par 22 and par 33 of the defendants' defence and counterclaim (filed on 16 May 2016).

2. In summary, the defendants through counsel had promised to provide answers to the request for further and better particulars issued by the plaintiff's legal advisers at, or in the course of a directions hearing on, 15 September 2016.  In due course, however, answers were not provided.  That was because, on 19 October 2016, the plaintiff's legal representatives received an amended defence and counterclaim, which new pleading altered the former pleas at par 22 and par 33 in such a way that the formerly requested particulars now became redundant, having regard to the terms of the defendants' amended pleading.

3. In the circumstances, the plaintiff still seeks their costs fixed at $1,936 calculated upon a basis as is explained under par 13 of the plaintiff's written submissions filed in support of this application of 2 November 2016.

4. But in refutation of the plaintiff's claim for costs incurred in respect of the particulars requested, the defendants contend that there should be no order as to such costs, essentially pointing out that there have been swings and roundabouts as between the parties through their ongoing series of conferrals in relation to wider issues, with points taken on both sides about asserted deficiencies in either side's pleadings. 

5. The defendants point out that a pleading issue they had raised in relation to what they contend was a defective copyright infringement plea by the plaintiff was eventually able to be resolved consensually, thereby avoiding a level of unnecessary legal costs associated with what would have been only wasteful interlocutory disputation inhibiting the progress of the matter to a substantive trial.  The defendants, in effect, point to a need for a holistic view to be taken about interlocutory costs while an action is proceeding towards a trial, rather than cherry picking out small interlocutory flare ups which are likely to arise in most cases and should not be unduly encouraged by costs orders, in the interests of providing a sensible pre‑trial working environment.

Determination

1. The question at issue is essentially a matter of practice and procedure.  Each side has raised some valid points in respect of the rival costs positions either in advancing or in resisting a case for costs.  I would point out that, irrespective of the present application, it would appear to be the case that if, in fact, the plaintiff has incurred wasted legal costs as a result of amendments made to the defendants' pleading, the plaintiff would have a basis pursuant to O 66 r 1 to advance a case on a taxation, if it is successful after a trial, as its costs 'thrown away'.  I had occasion recently to discuss the phenomenon of costs thrown away in my reasons for decision in Simmons v Love [No 2] [2016] WASC 167: see O 66 r 3(1).

2. As a matter of policy concerning the present application, I am troubled that the quasi taxation outcome which the plaintiff presently seeks by this costs application effectively takes but one smallish aspect of the interlocutory preparations associated with the matter, which is still some way distant from being entered for trial, and would seek to have me render an assessment about interlocutory costs in an inappropriately confined environment.  The costs result which is presently advocated by the plaintiff is better and more reliably progressed and implemented, in my view, on a holistic basis at the termination of the proceedings, when one side can be seen to have either succeeded or failed.  That, in my view, is the proper approach to follow here, notwithstanding a degree of ostensible merit in the claim for wasted costs associated with an unanswered request for further particulars and with some legal work associated with efforts to obtain answers to those requests, which ultimately were rendered redundant.

3. In all the circumstances, my assessment is that it would be a just outcome for this aspect of the parties' dispute to be resolved upon the basis of an order that the costs associated with the plaintiffs seeking, requesting and conferring over the further and better particulars that it required in respect of par 22 and par 33 of the defence and counterclaim should be the plaintiff's taxed costs in the overall cause of the action, in any event.

4. In other words, if the plaintiff wins at the trial, it can claim and recover its taxed costs in that aftermath of trial success.  But if the plaintiff fails at the trial, then there will be no costs orders applicable on either side for interlocutory costs associated with the requested particulars.  That outcome would, in my view, reflect the overall interests of justice between these parties and, from a wider policy perspective, not see small matters intrude to impede the way of the bigger picture of overall co-operative dispute resolution.

5. Orders will issue in such terms upon publication of these reasons and, lest there be any doubt, I should clarify that this award of costs as framed, extends to include the costs associated with the preparation of written submissions filed in advancing this application, now determined upon the papers.