Howkins v Ace Cinemas Pty Ltd
[2007] WADC 156
•29 August 2007 typed from tape and edited by Principal Registrar Gething
HOWKINS -v- ACE CINEMAS PTY LTD & ORS [2007] WADC 156
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 156 | |
| Case No: | CIV:2139/2004 | 29 AUGUST 2007 | |
| Coram: | PRINCIPAL REGISTRAR GETHING | 29/08/07 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Costs orders made | ||
| PDF Version |
| Parties: | TONI HOWKINS ACE CINEMAS PTY LTD SITE PROJECT MANAGEMENT (1993) PTY LTD MIDLAND CINEMAS PTY LTD |
Catchwords: | Costs Application to vacate trial |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
HEARD : 29 AUGUST 2007 DELIVERED : Delivered Extemporaneously on 29 AUGUST 2007 typed from tape and edited by Principal Registrar Gething FILE NO/S : CIV 2139 of 2004 BETWEEN : TONI HOWKINS
- Plaintiff
AND
ACE CINEMAS PTY LTD
First Defendant
SITE PROJECT MANAGEMENT (1993) PTY LTD
Second Defendant
MIDLAND CINEMAS PTY LTD
Third Party
Catchwords:
Costs - Application to vacate trial
(Page 2)
Legislation:
Nil
Result:
Costs orders made
Representation:
Counsel:
Plaintiff : Mr C Prast
First Defendant : Mr R L Murando
Second Defendant : Mr R Humphries
Third Party : Not applicable
Solicitors:
Plaintiff : Slater & Gordon
First Defendant : Jackson McDonald
Second Defendant : McAuliffe Legal
Third Party : Jackson McDonald
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 PRINCIPAL REGISTRAR GETHING: The issue before me for determination flows from orders I made on 27 July. Specifically those orders were to vacate the trial in this action which was then listed to commence on 13 August 2007. At that time I reserved the question of costs for later determination. The plaintiff and second defendants seek orders that the first defendant pay the costs thrown away by reason of the vacation of the trial dates. From the second defendant's position, this is primarily on the ground that the genesis of the late vacation of trial dates was late discovery of particular information by the first defendant. The first defendant argues that the plaintiff should pay the costs as it was her delay in amending the statement of claim to effectively substitute a defendant, which was the genesis of the trial ultimately being delayed.
2 In order to determine the application it is necessary to place the issues in their brief historical context. By writ issued in September 2004, the plaintiff sued a company by the name of Hospitality Pty Ltd, as first defendant. The cause of action arose out of injuries sustained by the plaintiff when attempting to sit on a seat at the Ace Cinemas, Midland. The plaintiff also sued Site Project Management (1993) Pty Ltd, who installed the seat.
3 In the first defendant's defence filed in March 2005, the first defendant pleaded that Ace Cinemas Pty Ltd carried on the business as the operator of the Midland Cinemas. However, it also pleaded that it, as the first defendant, had in place a reasonable system of inspection of seating in the cinema, but did not plead that Ace Cinemas Pty Ltd had such a system of inspection in the cinema. It subsequently appeared that the plaintiff was advised by someone described in correspondence as a "lay client" of the solicitor for the first defendant, that Hospitality Pty Ltd was sued in error and that the correct defendant was Ace Cinemas Pty Ltd.
4 By a letter dated 16 December 2004, the plaintiff inquired whether the first defendant would consent to an amendment to effect this change. By a letter dated 17 December 2004 the solicitors for the then first defendant, Hospitality Pty Ltd, advised that it would neither consent nor oppose that amendment. For reasons that are not apparent in the affidavit material before me, the plaintiff did not make an application until February 2007.
5 In submissions, counsel for the plaintiff advised that the reason why the application was not made until February 2007, was that the issue was seen as one of, effectively, tidying up the pleadings for the purposes of
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- trial. The application was returnable at the listing conference on 12 March 2007, at which the matter was given trial dates. The effect of the amendment was to substitute Ace Cinemas Pty Ltd for the then first defendant, Hospitality Pty Ltd.
6 On 12 March I made orders allowing the amendment. I also allowed the defendants to have leave to amend their defences to reflect the amended name of the first defendant. In its amended defence, filed 20 July, the new first defendant, Ace Cinemas Pty Ltd, denied that it was the occupier and said that Midland Cinemas Pty Ltd, who was in a trustee capacity, was the occupier.
7 The draft amended defence had been provided to the second defendant and plaintiffs, by the first defendant's solicitors, under cover of letter dated 11 April 2007. Behind the pleading is two key documents. The first one is the lease document, by which Midland Cinemas Pty Ltd becomes the lessor. The second document is the management agreement between Midland Cinemas Pty Ltd and Ace Cinemas Pty Ltd. The management agreement was discovered by Ace Cinemas Pty Ltd to the plaintiff in May 2007. However, because of what I am told in submissions was an oversight, it was not provided to the second defendant until 13 July 2007. This date, 13 July, was only a month before the trial then scheduled to commence on 13 August 2007.
8 In looking at the question of costs, it is constructive to start with the parties in turn to see where the issue of costs should lie. I start here with the second defendant. The second defendant's argument in favour of costs thrown away by reason of the trial date being vacated was that it was not until 13 July that it received a full copy of the management agreement. It was only then that it was able to form a concluded view that Midland Cinemas Pty Ltd was, at least in the view of the second defendant, the occupier of the premises.
9 This has subsequently led to the second defendant joining Midland Cinemas Pty Ltd as a third party.
10 Because of that delay, which has not been satisfactorily explained to me, it seems to me appropriate that the second defendant receive its costs thrown away by reason of the trial dates being vacated. It then becomes a question of the party which should pay those costs, and the cost position of the other parties.
11 The plaintiff's position is that at all times it has sought to – to paraphrase the submissions – "pierce the corporate veil" – to work out
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- which company is the appropriate occupier of the cinemas. In essence, it has no particular issue as to which company it sues, provided it sues the company that, in practical terms, the insurers recognise as being the occupier. The expectation of the plaintiff at the time of the amendment, was that what was happening was in the nature of a amendment more as to form than as to substance. The defence then filed by Hospitality Pty Ltd identified Ace Cinemas Pty Ltd as the occupier. The plaintiff, it appears, expected that upon joining Ace Cinemas Pty Ltd as the occupier, Ace Cinemas Pty Ltd would effectively admit that it was the occupier consistent with the position of Hospitality Pty Ltd.
12 In submissions before me much was made of the question of the corporate group arrangements between Ace Cinemas Pty Ltd, Midland Cinemas Pty Ltd and Hospitality Pty Ltd. It seems readily apparent, from the management agreement at least, that there is a commercial agreement between Ace Cinemas Pty Ltd and Midland Cinemas Pty Ltd. There is no information before me, however, as to the common directorships or common ownership.
13 It is reasonably apparent from the way the litigation has been conducted, that these companies share the same solicitors and the same insurer. However, having said that, weight has to be given to the fact that they are separate legal entities. Weighing all that in the balance, it seems to me that the position as regards the plaintiff and the costs of the vacated trial should be, effectively, a neutral one. It was open to the plaintiff to seek these amendments at an earlier stage; it chose not to. However, it chose not to for what seems to be reasonable grounds. So in relation to the plaintiff's position, it should be neutral. It should neither pay the costs of the vacated trial nor bear the costs of, nor receive any costs of, the vacated trial.
14 This then leaves the position of the first defendant. It seems to me that the appropriate order is that the first defendant pay the costs thrown away by reason of the vacated trial, insofar as those costs were borne by the second defendant. The reason for this goes back to my earlier comments that it seems to me that the catalyst for the trial ultimately being vacated was the late disclosure of the management agreement, and in particular the fact that the management agreement was not disclosed to the second defendant until some two months after it was disclosed to the plaintiff.
15 In my view, had that management agreement been disclosed in May, there would have been a reasonably solid prospect that the trial in
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- August could have proceeded. In relation to the costs flowing from the vacated trial the order should be along the lines that the first defendant pay the second defendant's costs thrown away by reason of the trial dates being vacated. I will hear counsel on the precise wording of the orders to give effect to this decision.
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