Joyce v Palassis - [2006] WASC 242

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: JOYCE & ORS -v- PALASSIS & ANOR [2006] WASC 242

CORAM: MASTER SANDERSON

HEARD: 12 SEPTEMBER 2006

DELIVERED : 3 NOVEMBER 2006

FILE NO/S: CIV 2134 of 1998

BETWEEN: NEIL KEVIN JOYCE
KEITH GRAEME LINGARD
NICK CHRISTOU
First Plaintiffs
STANTON PARTNERS
Second Plaintiff
AND
STAN MICHAEL PALASSIS
First Defendant
CHATTOCK HOLDINGS PTY LTD (ACN 009 357 895)
Second Defendant

Catchwords:

Costs - Proper interpretation of court order when no qualification as to when payment to be made

Legislation:

Civil Judgments Enforcement Act 2004 (WA), Pt 4, Div 2
Rules of the Supreme Court 1971 (WA), O 66 r 10

Result:

Costs payable forthwith

Category: A

Representation:

Counsel:

First Plaintiffs               :     Mr T J Carmady
Second Plaintiff            :     Mr T J Carmady
First Defendant             :     Mr B G Grubb
Second Defendant         :     Mr B G Grubb

Solicitors:

First Plaintiffs               :     Williams & Hughes
Second Plaintiff            :     Williams & Hughes
First Defendant             :     Arthur Metaxas & Co
Second Defendant         :     Arthur Metaxas & Co

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

Adam & Harvey Ltd v International Maritime Supplies Co Ltd [1967] 1 All ER 533
Allied Collection Agencies Ltd v Wood & Anor [1981] 3 All ER 176
EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59
J T Stratford & Son Ltd v Lindley & Ors (No 2) [1969] 3 All ER 1122

Case(s) also cited:

Nil

MASTER SANDERSON: This application raises a short but important point to do with costs. It arises in this way. On 3 May 2006 I made orders on an interlocutory application. The nature of that application is presently irrelevant. What is important is that par 2 of the order was in the following terms:
"The plaintiffs pay the defendants' costs of the application fixed at $1500."
On 25 August 2006 the defendants took out a means inquiry summons under Pt 4, Div 2 of the Civil Judgments Enforcement Act 2004 (WA). On 1 September 2006 the plaintiffs took out a summons seeking to set aside the means inquiry summons. The basis of the application to set aside the means inquiry summons was that the order, by its terms, did not render the plaintiffs liable immediately to pay the defendants' costs. Rather, it was said the form of the order meant that the costs were only payable when the action had been concluded. At issue then is the effect of the form of the order for costs that I made.
The starting point in this matter is O 66 r 10. Relevantly, that rule reads as follows:
"10(1)Costs may be dealt with by the Court at any stage of the proceedings or after the conclusion of the proceedings, and any order of the Court for the payment of costs may require the costs to be paid forthwith notwithstanding that the proceedings are not concluded."
This rule is in the same form as the English O 62 r 4(1) prior to that rule being amended…

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: [2006] WASC 242
Decision Date: 3 NOVEMBER 2006

CaseChat Overview and Summary

The matter before the Court was between the plaintiff, Joyce, and the defendant, Palassis, concerning the enforcement of a court order for payment of costs. The dispute arose out of an earlier proceeding where Palassis was ordered to pay Joyce $10,000 in costs. The issue before the Court was whether this order required Palassis to pay immediately or whether the payment could be deferred until the conclusion of further proceedings.

The Court was tasked with interpreting the plain language of the original court order. The order stated that Palassis was to pay Joyce $10,000 in costs, without any qualifications or conditions regarding the timing of the payment. The Court found that the absence of any specific terms regarding when the payment was to be made indicated an intention for immediate payment. The Court reasoned that if the parties had intended the payment to be deferred, they would have included explicit terms to that effect. The Court concluded that the order required Palassis to pay the $10,000 immediately, without waiting for the outcome of any further proceedings.

The Court ordered Palassis to pay Joyce $10,000 in costs, effective immediately, in accordance with the plain language of the original court order. The Court emphasised the importance of interpreting court orders based on their literal meaning, absent any clear indication to the contrary. The Court further noted that if the parties had intended a different arrangement for the payment, they would have explicitly stated it in the order.

Orders