KETCH Nominees Pty Ltd v Spooner

[2001] WADC 159

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   KETCH NOMINEES PTY LTD -v- SPOONER & ANOR [2001] WADC 159

CORAM:   REGISTRAR KINGSLEY

HEARD:   15 MAY 2001

DELIVERED          :   3 JULY 2001

FILE NO/S:   CIV 46 of 2000

BETWEEN:   KETCH NOMINEES PTY LTD

Plaintiff

AND

GREGORY ALAN SPOONER
First Defendant

LYNDA MARY SPOONER
Second Defendant

Catchwords:

Practice - Costs orders after defendant application for summary judgment - Plaintiff ordered to pay costs

Legislation:

Commercial Tenancy (Retail Shops) Agreement Act 1985

Rules of the Supreme Court of Western Australia

Result:

Orders made

Representation:

Counsel:

Plaintiff:     Mr S Hicks

First Defendant             :     Ms Y Henderson

Second Defendant         :     Ms Y Henderson

Solicitors:

Plaintiff:     Richard Huston and Associates

First Defendant             :     Gibson & Gibson

Second Defendant         :     Gibson & Gibson

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

About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd (1997) 17 WAR 309

Colgate-Palmolive Co v Cussons (1993) 46 FCR 225

Re Wileax; Ex Parte Venture Industries Pty Ltd (1996) 141 ALR 727

Unioil v Deloitte Touche Tohmatsu (1997) 18 WAR 190

Case(s) also cited:

Bass Shire Council v King, unreported; SCVic; 15 August 1994

Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21

J Corp Pty Ltd v Australian Builders Labourers' Federated Union of Workers (1993) 46 IR 301

Adelaide Congregation Jehovah's Witness v Pegasus Leasing & Anor, SCt of SA; 24 December 1996

Packer v Meagher (1984) 3 NSWLR 486

Regata Developments Pty Ltd v Westpac Banking Corp (unreported, Federal Court, Davies J, 5 March 1993)

Rosniah v Government Insurance Office (1997) 41 NSWLR 608

Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, French J, 3 May 1991)

Yakutzoloto Bank v Jordan Manor Pty Ltd (Vic Supreme Court 223/96)

Yates Property Corporation Pty Ltd v Boland (No 2) (1997) 147 ALR 685

1. REGISTRAR KINGSLEY:  After hearings on 5 May 2000, 18 May 2000, 9 August 2000, 20 September 2000 and 9 December 2000 I am now dealing with the issue of costs.

2. The application is the plaintiff's application pursuant to O 14 of the Rules of the Supreme Court of Western Australia.  Seizing on comments made by me in my reasons published 6 March 2001 the defendant seeks that:-

   (a)the plaintiff pay the defendants costs and;

   (b)those costs be taxed on a solicitor-client basis.

3. The plaintiff's action relates to a claim made under a determination of a tenancy held by the defendant.  By the plaintiff's fourth cross-reference schedule some 94 items were in dispute.  In my reasons I commented that the deponent Oliver was prepared to depose to matters not caring whether the matter actually related to the tenancy.  I was concerned that the plaintiff was seeking to cause as much difficulty to the defendants.  I went on to illustrate, briefly, some examples of my concern.

Indemnity costs

1. The usual order is for party-party costs and an order for indemnity costs will only be made if there is some special or unusual feature in the case to warrant departure from the usual order (Colgate‑Palmolive Co v Cussons (1993) 46 FCR 225, Re Wileax; Ex Parte Venture Industries Pty Ltd (1996) 141 ALR 727).

2. In the Colgate case, Sheppard J commented that the categories of cases in which there is a departure from party-party costs is not closed, but then went on to mention six circumstances:

   (a)making allegations of fraud knowing them to be false;

   (b)misconduct causing loss of time;

   (c)continuation of proceedings for ulterior motives;

   (d)making allegations that ought not be made;

   (e)imprudent refusal to compromise; and

   (f)proceedings involving a contemnor.

3. Sheppard J noted that whilst circumstances capable of departing from the usual rule may be present, there is no compulsion in making an order: costs are always in the discretion of the Court.

4. In my reasons I commented that I had a clear impression that the matters being put to the Court were to cause as much difficulty to the defendants as possible.  But that is what it is – a clear impression.  Until all the evidence comes out that impression can be no higher.  I am of the opinion that the summary judgment proceedings do not warrant an indemnity costs order.

Ought the costs be the defendants?

1. A substantial affidavit in support of the plaintiff's application was filed by Oliver.  This was countered by three affidavits on the defendant's part and a further affidavit by the plaintiff.  I am putting to one side the timing of filing these affidavits.

2. As a result of the issues raised by the defendant's affidavit the plaintiff's counsel prepared four cross-reference schedules.  These schedules stated the paragraph of the statement of claim, the paragraph of Oliver's affidavit in support of the plea and the paragraphs of the defendant's affidavit, together with a comment whether the item was a bland denial, queried or disputed.  As I said these were the 94 items mentioned.

3. In an application pursuant to O 14 of the Rules of the Supreme Court of Western Australia all the defendant need do is put forward an arguable case.  Certainly the defendant must condescend to particulars; but when a defendant puts in three lengthy affidavits, unless the content is complete stuff and nonsense, a properly advised plaintiff would be drawn to the conclusion there may be something in it.  To then proceed to argue, in minute detail the various issues is, drawing on Lord Woolf's Access to Justice, Final Report (s 19, par 7) taking an unduly combative approach.

4. In Unioil v Deloitte Touche Tohmatsu(1997) 18 WAR 190, Ipp J at 194 commented that there is a general duty on lawyers to co-operate so as to avoid needless disputes: provided the circumstances are appropriate. In my opinion for the plaintiff to proceed in the face of the detailed information put up by the defendants has led to delay, needless costs and inconvenience. For these reasons I am of the opinion a departure from the normal costs order is warranted and the defendant is entitled to costs.

Costs orders

1. The appearances on 5 May 2000, 18 May 2000 and 25 May 2000 relate to the first return of the plaintiff's application.  No substantive orders were made.  In the circumstances those costs are in the cause.

2. On 9 August 2000 issues as to jurisdiction were raised by me and dealt with in a separate decision.  The costs of and including the issues dealing with s 27 Commercial Tenancy (Retail Shops) Agreement Act 1985 and the impact of About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd(1997) 17 WAR 309 will be in the cause.

3. As for the appearance on 20 September 2000, 7 December 2000 and 8 May 2001, including all affidavits and submissions in relation to the plaintiff's O 14 application, those costs will be the defendants costs in any event.