Jadwan Pty Ltd v Rae and Partners (No 2) - [2015] TASSC 17

[2015] TASSC 17

COURT: SUPREME COURT OF TASMANIA

CITATION: Jadwan Pty Ltd v Rae & Partners (No 2) [2015] TASSC 17

PARTIES: JADWAN PTY LTD (ACN 006 203 112)
v

RAE & PARTNERS (a firm)
WILSON DOWD (a firm)
TOOMEY MANNING & CO (a firm)
JANET KAY HOGAN as Executor of the Estate of the Late John Michael Hogan

WORSLEY DARCEY & ASSOCIATES (a firm)

FILE NO: 35/2003

DELIVERED ON:  15 May 2015
DELIVERED AT:  Hobart
HEARING DATE:  11 May 2015
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Costs – Interlocutory proceedings – Costs in the cause – Rule of court that costs in the cause of the party in whose favour application determined – Power to otherwise order – Costs of defendants' successful applications for security for costs.
Supreme Court Civil Procedure Act 1932 (Tas), s12.
Supreme Court Rules 2000 (Tas), r65.
Gunns Ltd v Alishah (No 3) (2009) 19 Tas R 401 followed.
Jazabas Pty Ltd v Haddad (2006) NSWSC 880 and Adult Guardian v B (2002) 170 FLR 220 considered.
Aust Dig Procedure [602]

REPRESENTATION:

Counsel:

Plaintiff:  S Matters
           1^st, 2^nd & 3^rd defendants:               G Tremayne
           4^th & 5^th defendants:  C Gunson
Solicitors:
           Plaintiff:  Fitzgerald & Browne
           1^st, 2^nd & 3^rd defendants:               Tremayne Faye & Rheinberger
           4^th defendant:  Lander & Rogers
           5^th defendant:  Shaun McElwaine + Associates

Judgment Number: [2015] TASSC 17
Number of paragraphs: 29

Serial No 17/2015
File No 35/2003

JADWAN PTY LTD v RAE & PARTNERS (a firm) and
WILSON DOWD (a firm) and TOOMEY MANING & CO (a firm) and
JANET KAY HOGAN as Executor of the Estate of the Late John Michael Hogan and WORSLEY DARCEY & ASSOCIATES (a firm)

REASONS FOR JUDGMENT Holt AsJ
15 May 2015

On 30 March 2015 I made orders requiring the plaintiff to give security for the costs of the defendants and published reasons. Jadwan Pty Ltd v Rae & Partners [2015] TASSC 11. At the same time I adjourned the hearing of several interlocutory applications which may or may not proceed depending upon whether the security ordered is given.
The matter has since returned for the consideration of questions of costs.
As to the adjourned interlocutory applications, it was agreed that argument as to the costs occasioned by or thrown away as a result of the adjournments should be presented when the applications are determined or some other event occurs which makes it appropriate to finally dispose of the costs of those applications. I do not consider it necessary to make a formal order adjourning those costs questions.
The matter of the costs of the security for costs applications was argued.
The defendants applied for orders giving them the costs of the security applications regardless of the ultimate outcome of the primary proceedings. Counsel for the first, second and third defendants was content that any order made in favour of those defendants be conditioned by the…

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: [2015] TASSC 17
Decision Date: 15 May 2015

CaseChat Overview and Summary

Jadwan Pty Ltd, a contractor, brought an action against Rae and Partners, an architectural firm, for alleged breaches of contract. The dispute centred on the alleged failure of the architect to properly supervise the construction of a project. The case was heard in the Supreme Court of New South Wales. The central legal issues before the court were the allocation of costs in relation to successful applications for security for costs and the application of the rule that the losing party in interlocutory proceedings should bear the costs of the proceedings.

The court considered the principle that, in interlocutory proceedings, the party in whose favour the application is determined should bear the costs of the cause. However, the court also recognised its discretion to order otherwise. The defendants had successfully applied for security for costs, and the court had to decide whether the plaintiffs should bear the costs of these applications. The court found that the plaintiffs' applications for security for costs were unsuccessful and that the defendants had incurred costs as a result of these applications. The court exercised its discretion and ordered that the defendants' costs of their successful applications for security for costs be borne by the plaintiffs.

The court's reasoning was based on the principle that the discretion to order costs in interlocutory proceedings should be exercised to achieve fairness. In this case, the court found that it was just and equitable to order the plaintiffs to bear the defendants' costs of their successful applications for security for costs. The outcome of the case reinforces the importance of the court's discretion in allocating costs in interlocutory proceedings and highlights the need for careful consideration of the principles of fairness and justice.

Orders