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Iskandar & Natrabu v Merpati [2005] NTSC 84

PARTIES: FREDDIE ISKANDAR and
NATRABU (AUST) TOURS & TRAVEL PTY LTD

MERPATI NUSANTARA AIRLINE

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO: 248/96 (9626979)

DELIVERED: 22 December 2005

HEARING DATES: 1 December 2005

JUDGMENT OF: THOMAS J

CATCHWORDS:

REPRESENTATION:

Counsel:
Appellant: F Davis
Respondent: J Reeves QC

Solicitors:
Appellant: Davis Norman
Respondent: Cridlands

Judgment category classification: C
Judgment ID Number: tho200512
Number of pages: 11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Iskandar & Natrabu v Merpati [2005] NTSC 84
No. 248/96 (9626979)

BETWEEN:

FREDDIE ISKANDAR
First Plaintiff

NATRABU (AUST) TOURS & TRAVEL PTY LTD
Second Plaintiff

AND:

MERPATI NUSANTARA AIRLINE
Defendant

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 22 December 2005)

[1] On 6 October 2005, I delivered written reasons for my decision for making an order to dismiss the proceedings.

[2] Leave was granted to the parties to apply on the question of costs.

[3] On 9 November 2005, solicitors for the defendant issued a summons seeking the following orders:
“1. The solicitor for the Plaintiffs, or alternatively the Plaintiffs, pay the Defendant’s costs of the proceeding, including the application to dismiss the proceeding for want of prosecution and of this application, on an indemnity basis, or alternatively on the standard basis;
2. The first Plaintiff attend before the Master to be orally examined and to produce all documents in his possession, custody or power relating to the material questions (as defined by RSC 67.01) as they relate to both Plaintiffs.”

[4] On 2 November 2005, solicitor for the plaintiff issued a summons seeking the following orders:
“(1) That the Defendants Counter Claim is dismissed.
(2) Costs; and
(3) Such Orders as this honourable Court deems appropriate.”

[5] These matters were heard together on 1 December 2005. I shall deal firstly with the defendant’s summons.

[6] At the commencement of submissions, Mr Reeves QC, as counsel for the defendant, advised that the application for costs with respect to the solicitor for the plaintiff would not be proceeding. Accordingly, the application for costs is against the plaintiffs for costs on an indemnity basis or alternately on the standard basis. It is submitted that the application is based upon the following factors:
“2. (a) the dismissal of the proceedings for want of prosecution;
(b) the finding that there had been inordinate delay on the part of the plaintiffs (Reasons at [85]);
(c) the inordinate delay had not been explained in any way by the plaintiffs (Reasons at [88]);
(d) want of prosecution is a form of abuse of process;
(e) the length of the delay;
(f) a substantial portion of the claim being outside the limitation period, with no application to extend time. That part of the claim was almost doomed to failure.”

[7] The power to order costs is set out in Order…

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: [2005] NTSC 84
Decision Date: 22 December 2005

CaseChat Overview and Summary

In the case of Iskandar & Natrabu (Aust) Tours & Travel Pty Ltd v Merpati Nusantara Airlines, the Supreme Court of the Northern Territory dealt with an application for costs and other related matters following the dismissal of a claim for want of prosecution. The plaintiffs, Freddie Iskandar and Natrabu (Aust) Tours & Travel Pty Ltd, had initiated proceedings against the defendant, Merpati Nusantara Airlines. The defendant applied for an order that the plaintiffs pay their costs on an indemnity basis, among other things. The primary legal issue before the court was whether the plaintiffs should be ordered to pay the defendant's costs on an indemnity basis due to the delay in prosecuting the claim.

The court considered the principles governing the award of costs on an indemnity basis, noting that such an order requires special circumstances. The court found that while there had been significant delays on the part of the plaintiffs, the circumstances did not warrant an indemnity costs order. The defendant's own lack of diligence since December 2004 also played a role in the delays. The court held that the usual order that costs follow the event was appropriate and ordered that the plaintiffs pay the defendant's costs on a standard basis. The court refused the defendant's application to have the first plaintiff examined regarding his ability to satisfy the costs order, as there was no substantial evidence to suggest that the plaintiff might avoid paying the costs.

The final orders of the court included an order for the plaintiffs to pay the defendant's costs on a standard basis, a refusal of the application for indemnity costs, an order for the defendant to pay the plaintiffs' costs related to the application for costs against the plaintiffs' solicitor, a refusal to order an examination of the first plaintiff, and an adjournment of the plaintiffs' application to dismiss the defendant's counterclaim. The court balanced the equities of the case, considering both parties' conduct and the principles of justice in reaching its decisions.

Orders