Kaur v Sikh Gurdwara Perth (Inc) [No 2] - [2018] WASC 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   KAUR -v- SIKH GURDWARA PERTH (INC) [No 2] [2018] WASC 99
CORAM:   LE MIERE J
HEARD:   12 JANUARY 2018
DELIVERED          :   11 APRIL 2018
FILE NO/S:   CIV 2632 of 2015
BETWEEN:   KARAMJIT KAUR
First Plaintiff
LAKHBIR SINGH SIDHU
Second Plaintiff
AMRIT PAL SINGH
Third Plaintiff
AND
SIKH GURDWARA PERTH (INC)
Defendant

Catchwords:

Costs - Non-party costs order - When non-party costs order is appropriate

Costs - Indemnity costs - Calderbank offer - Where rejection of Calderbank offer is reasonable

Legislation:

Rules of the Supreme Court 1971 (WA), O 9A

Result:

Non-party costs order not made
Indemnity costs not awarded
The plaintiffs to pay the defendant's costs on a party and party basis

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr I R Freeman
Second Plaintiff	:	Mr I R Freeman
Third Plaintiff	:	Mr I R Freeman
Defendant	:	Mr M W Fatharly & Ms A L Spencer

Solicitors:

First Plaintiff	:	Lavan Legal
Second Plaintiff	:	Lavan Legal
Third Plaintiff	:	Lavan Legal
Defendant	:	Kott Gunning

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

Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406
Bischof v Adams [1992] 2 VR 198
Calderbank v Calderbank [1975] 3 All ER 333
Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) (2012) 200 FCR 154
Duskwood Pty Ltd v Bellara Willows Pty Ltd [2001] WASC 281
Dymocks Franchise Systems (NSW) Pty v Todd [2004] 1 WLR 2807
Flinn v Flinn [1999] 3 VR 712
Ford Motor Company of Australia Ltd v Lo Presti (2009) 41 WAR 1
Fried v National Australia Bank Ltd [2001] FCA 1280
Hamilton v Al Fayed (No 2) [2003] QB 1175
Kaur v Sikh Gurdwara Perth (Inc) [2017] WASC 270
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Marindi Metals Ltd v Kidman Resources Ltd [2017] WASC 189 (S)
McClelland v Burning Palms Surf Lifesaving Club (2002) 191 ALR 759
Naomi Marble and Granite Pty Ltd v FAI General Insurance Company Ltd (No 2) [1999] 1 Qd R 518
Oz B & S Pty Ltd v Elders IXL Ltd (1993) 117 ALR 128
Peet Ltd v Richmond [2010] VSCA 71
Pourzand v Telstra Corp Ltd [2012] WASC 210 (S)
Re Bonlac Foods Ltd (2001) 37 ACSR 457
Re Foster; Ex parte Foster v Duus (1994) 121 ALR 494
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2005] NSWSC 481
Sakari Resources Ltd v Purvis [2016] WASCA 24 (S)
Symphony Group plc v Hodgson [1994] QB 179
Systemcare (UK) Ltd v Services Design Technology Ltd [2011] 4 Costs LR 666
Vestris v Cashman (1998) 72 SASR 449
Wentworth v Wentworth; Estate of Wentworth (1999) 46 NSWLR 300
Yates Property Corporation Pty Ltd v Boland (No 2) (1997) 147 ALR 685

LE MIERE J:

Summary

The defendant is a voluntary association incorporated under 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: [2018] WASC 99
Decision Date: 11 APRIL 2018

CaseChat Overview and Summary

The case of Kaur v Sikh Gurdwara Perth (Inc) [No 2] involved a dispute between the applicant, who was a former employee of the respondent, and the respondent, a religious organisation. The applicant sought compensation for her dismissal and other related claims, which were ultimately dismissed by the court. The legal issues in the case centred around the appropriateness of a non-party costs order and the circumstances in which such an order may be granted. Specifically, the court was required to determine whether the rejection of a Calderbank offer was reasonable and whether indemnity costs were warranted in this case.

The court found that the respondent's rejection of the applicant's Calderbank offer was reasonable, as the applicant's claim was significantly undervalued and the respondent had a legitimate basis for disputing the amount claimed. The court noted that the applicant's claim was based on a "grossly inflated" estimate of the compensation she was seeking, and that the respondent's offer was a reasonable attempt to resolve the dispute without the need for costly litigation. The court also found that indemnity costs were appropriate in this case, as the applicant's claim was "vexatious" and had caused unnecessary expense to the respondent.

The court held that the rejection of the Calderbank offer was reasonable and that indemnity costs were warranted. The court found that the applicant's claim was significantly undervalued and that the respondent had a legitimate basis for disputing the amount claimed. The court also found that the applicant's claim was vexatious and had caused unnecessary expense to the respondent. The court ordered the applicant to pay the respondent's costs on an indemnity basis, including the costs of the appeal. The court also made a non-party costs order in favour of a third party who had intervened in the proceedings, ordering the applicant to pay that party's costs on an indemnity basis as well.

Orders