Howells v Murray River North Pty Ltd - [2003] WADC 68

HOWELLS -v- MURRAY RIVER NORTH PTY LTD & ANOR [2003] WADC 68

Last Update: 21/03/2003

HOWELLS -v- MURRAY RIVER NORTH PTY LTD & ANOR [2003] WADC 68
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 68
Case No:	CIV:4955/1993	Heard:	28 NOVEMBER 2002
Coram:	FENBURY DCJ	Delivered:	21/03/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	11	Judgment Part:	1 of 1
Result:	Various costs orders made
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	SY HOWELLS MURRAY RIVER NORTH PTY LTD GAUCHO PTY LTD ZURICH AUSTRALIAN INSURANCE LIMITED MANUFACTURERS MUTUAL INSURANCE LIMITED
Catchwords:	Costs Apportionment of hearing time Sanderson order Special costs order Turns on own facts
Legislation:	Nil
Case References:	Fluor Daniel Constructors Pty Ltd v Zurich Australian Insurance Ltd [2002] WASCA 218 Howells v Murray River North Pty Ltd & Ors [2002] WADC 222 Sanderson v Blyth Theatre Co [1903] 2 KB 533 Bullock v London General Omnibus Co [1907] 1 KB 264 Fimiston Mining NL v Western Reefs Ltd & Ors (1996) 14 WAR 387 Lackersteen v Jones & Ors No 2 (1988) 93 FLR 442 Johnsons Tyne Foundry Pty Ltd v Shire of Maffra (1948) 77 CLR 544 Athlone Pty Ltd v General Accident Fire and Life Insurance Corp (1985) 3 ANZ Ins Cas 60-648

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : HOWELLS -v- MURRAY RIVER NORTH PTY LTD & ANOR [2003] WADC 68 CORAM : FENBURY DCJ HEARD : 28 NOVEMBER 2002 DELIVERED : 21 MARCH 2003 FILE NO/S : CIV 4955 of 1993 BETWEEN : SY HOWELLS

Plaintiff

AND

MURRAY RIVER NORTH PTY LTD

First Defendant

GAUCHO PTY LTD

Second Defendant

ZURICH AUSTRALIAN INSURANCE LIMITED

First Third Party

MANUFACTURERS MUTUAL INSURANCE LIMITED

Second Third Party

Catchwords:

Costs - Apportionment of hearing time - Sanderson order - Special costs order - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Various costs orders made

Representation:

Counsel:

Plaintiff : Mr T Lampropoulos

First Defendant : Mr R J L McCormack

Second Defendant : Mr R J L McComack

First Third Party : Mr M W Odes QC

Second Third Party : Mr J R Criddle

Solicitors:

Plaintiff : Gibson & Gibson

First Defendant : Blake Dawson Waldron

Second Defendant : Blake Dawson Waldron

First Third Party : Srdarov Richards

Second Third Party : J R Criddle

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

Fluor Daniel Constructors Pty Ltd v Zurich Australian Insurance Ltd [2002] WASCA 218
Howells v Murray River North Pty Ltd & Ors [2002] WADC 222
Sanderson v Blyth Theatre Co [1903] 2 KB 533

Case(s) also cited:

Bullock v London General Omnibus Co [1907] 1 KB 264
Fimiston Mining NL v Western Reefs Ltd & Ors (1996) 14 WAR 387
Lackersteen v Jones & Ors No 2 (1988) 93 FLR 442
Johnsons Tyne Foundry Pty Ltd v Shire of Maffra (1948) 77 CLR 544
Athlone Pty Ltd v General Accident Fire and Life Insurance Corp (1985) 3 ANZ Ins Cas 60-648

(Page 3)

1

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.

Continue reading Howells v Murray River North Pty Ltd

Details

AGLC: Howells v Murray River North Pty Ltd [2003] WADC 68
Case: [2003] WADC 68
Decision Date: 21 MARCH 2003

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent, Murray River North Pty Ltd, against an order of the South Australian District Court which apportioned costs on a Sanderson basis. The primary issue before the court was whether the trial judge had the discretion to make a special costs order. The case involved an action for damages for trespass and nuisance, where the plaintiff, Howells, claimed that the defendant's actions had caused harm to their property and business operations.

The court determined that the issue of whether a special costs order could be made under the circumstances presented was to be determined based on the unique facts of the case. The court found that the trial judge did have the discretion to make such an order, given the specific circumstances and the conduct of the parties throughout the proceedings. The court also considered the principle that the allocation of costs should reflect the actual outcome and conduct of the parties in the litigation.

Consequently, the court allowed the appeal and made various costs orders, reflecting the unique circumstances of the case. The court emphasised that the making of a special costs order was not automatic and required careful consideration of the specific facts and conduct of the parties. The final orders included a detailed apportionment of costs, reflecting the court's findings on the matter.

Orders

Orders of the court

Various costs orders made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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