Legal Research
Cases
Koh v Tay

Koh v Tay

Case [1999] WASC 228 17 November 1999

Costs

Indemnity Costs

Rules of Court

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

KOH -v- TAY [1999] WASC 228

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 228
Published:	17/11/1999
Case No:	CIV:1332/1994	Heard:	22 OCTOBER 1999
Coram:	SCOTT J	Delivered:	22/10/99
No of pages:	5	Judgment Part:	1 of 1
Result:	Application for indemnity costs order refused
PDF Version

Parties:	ANDREW KEE SUAN KOH AH BOEY TAY
Catchwords:	Civil matter Costs Order of costs subsequent to delivery of judgment Application for indemnity costs order "Calderbank" letter Rules of the Supreme Court, O 24A r 10(4) Plaintiff entitled to costs on indemnity basis provided the Rules of the Supreme Court are complied with
Legislation:	Rules of the Supreme Court, O 24A r 10(4)
Case References:	Calderbank v Calderbank [1975] 3 All ER 333 Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 Black v Lipovac & Ors (1998) Federal Court (FC) 4 June 1998 Dobb v Hackett (1993) 10 WAR 532 Wallace v Baulkham Hills Smash Repairs Pty Ltd (No 2), unreported; SCt of NSW; 21 August 1995

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : KOH -v- TAY [1999] WASC 228 CORAM : SCOTT J HEARD : 22 OCTOBER 1999 DELIVERED : 22 OCTOBER 1999 PUBLISHED : 17 NOVEMBER 1999 FILE NO/S : CIV 1332 of 1994 BETWEEN : ANDREW KEE SUAN KOH

Applicant (First Plaintiff)

AND

AH BOEY TAY

Respondent (First Defendant)

Catchwords:

Civil matter - Costs - Order of costs subsequent to delivery of judgment - Application for indemnity costs order - "Calderbank" letter - Rules of the Supreme Court, O 24A r 10(4) - Plaintiff entitled to costs on indemnity basis provided the Rules of the Supreme Court are complied with

Legislation:

Rules of the Supreme Court, O 24A r 10(4)

Result:

Application for indemnity costs order refused

(Page 2)

Representation:

Counsel:

Applicant (First Plaintiff) : Mr P Redding

Respondent (First Defendant) : Mr B P Wheatley

Solicitors:

Applicant (First Plaintiff) : Williams & Hughes

Respondent (First Defendant) : Murfett & Co

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

Calderbank v Calderbank [1975] 3 All ER 333
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425

Case(s) also cited:

Black v Lipovac & Ors (1998) Federal Court (FC) 4 June 1998
Dobb v Hackett (1993) 10 WAR 532
Wallace v Baulkham Hills Smash Repairs Pty Ltd (No 2), unreported; SCt of NSW; 21 August 1995

(Page 3)

1 SCOTT J: Judgment in this matter was delivered on 15 October 1999 in favour of the first plaintiff against the first defendant. Subsequent to the delivery of the judgment, a further hearing was held on 22 October, so that formal orders could be made. These reasons relate to the costs order made on that day.

2 At the hearing, counsel for the plaintiff moved for judgment against the first defendant in the sum of $642,013.41.

3 Counsel for the plaintiff sought an order for costs against the first defendant on an indemnity basis from 7 April 1999. The plaintiff argued that…

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.

Continue reading Koh v Tay

Details

AGLC: Koh v Tay [1999] WASC 228
Case: [1999] WASC 228
Decision Date: 17 NOVEMBER 1999

CaseChat Overview and Summary

The matter of Koh v Tay was before the court where the plaintiff, Koh, sought an order for costs on an indemnity basis. The dispute between the parties was settled after the delivery of judgment, following the exchange of a Calderbank letter. The court had to determine whether the plaintiff was entitled to costs on an indemnity basis in accordance with the Rules of the Supreme Court. The primary legal issue before the court was whether the plaintiff's application for indemnity costs complied with the requirements set out in O 24A r 10(4) of the Rules of the Supreme Court.

The court considered the requirements of O 24A r 10(4) and noted that the plaintiff's application for indemnity costs was made in compliance with the procedural requirements. The court held that the plaintiff was entitled to costs on an indemnity basis, provided that the Rules of the Supreme Court were complied with. However, the court found that the plaintiff's application did not meet the substantive requirements for an indemnity costs order under the Rules. The court concluded that the plaintiff was not entitled to an order for indemnity costs. The court therefore dismissed the plaintiff's application for indemnity costs.

No further orders were made by the court in relation to the application for indemnity costs. The court's decision was based on the procedural and substantive requirements for indemnity costs under the Rules of the Supreme Court. The court found that while the plaintiff had complied with the procedural requirements, the substantive requirements for an indemnity costs order were not met. As a result, the plaintiff's application for indemnity costs was refused.

Orders

Orders of the court

Application for indemnity costs order refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Koh v Tay [1999] WASC 228

Most Recent Citation

Radonich v Radonich [2000] WASC 163

Cases citing this decision · 10 of 10 shown

Hughes v St Barbara Ltd
[2011] WASCA 234 (S)

…ingham v Fotheringham (No 2) [1999] NSWCA 21; (1999) 46 NSWLR 194 Hendrie v Rusli [2000] WASCA 420 Hughes v St Barbara Ltd [2011] WASCA 234 Koh v Tay [1999] WASC 228 Milne v Attorney-General (Tas) [1956] HCA 48; (1956) 95 CLR 460 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Oshlack v Richmond River Cou…
Hughes v St Barbara Ltd
[2011] WASCA 234 Para 4

…he offer, then costs incurred after the date on which the offer was made should be taxed on an indemnity basis: see O 24 r 10(4) recited in Koh v Tay [1999] WASC 228. This was subsequently amended in 2007 to remove the provision for indemnity costs and to provide for costs to be taxed on a party and party basis.…
Motor Accident Commission South Australia v 3M Australia Pty Ltd
[2007] WADC 43 Para 12

…This passage was relied on by Scott J in Koh v Tay [1999] WASC 228 at [8] and Templeman J in Shepherd & Anor v Baster [2006] WASC 176, at [33]. In the latter case, Templemen J went on to say [at 35]: "Ultimately, in my view, the question is whether a defendant to whom a Calderbank offer has been made, thereafter a…
Shepherd v Baster
[2006] WASC 176 (S)

…ery & Ors [2003] 1 Qd R 651 Den Hoedt & Anor v Barwick [2006] WASCA 196 Dobb v Hacket (1993) 10 WAR 532 HPM Pty Ltd v Fear [2002] WASCA 249 Koh v Tay [1999] WASC 228 NMFM Property Pty Ltd v Citibank Ltd (No 11) (2001) 109 FCR 77 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 Shepherd & Anor v Baster…
Shepherd v Baster
[2006] WASC 176 Para 4

…or offers to be made when the consequences prescribed by the rule is open and available. The defendant relies on the decision of Scott J in Koh v Tay [1999] WASC 228 at [8].…
Marchant v Maitland
[2004] WADC 159 Para 5

…ay obtain an enlarged order for costs is in conformity with the procedure there provided. In support of this submission the defendant cited Koh v Tay [1999] WASC 228. The defendant further submitted that for there to be an order for indemnity costs a mere offer to settle not made in conformity with O 24A was insuf…
Australia and New Zealand Banking Group Ltd v Dzienciol
[2001] WASC 305 (S)

…n (1993) 9 SR (WA) 166 Harrison v O'Donnell [1919] WN 104 Hooper v Mckenzie, The Times, January 23, 1901 Huxley v Wootton (1912) 29 TLR 132 Koh v Tay [1999] WASC 228 Masling v Motor Hiring Company (Manchester) Limited [1919] 2 KB 538 MGICA (1992) Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236 NMFM Property Pt…
Australia and New Zealand Banking Group Ltd v Dzienciol
[2001] WASC 305

…n (1993) 9 SR (WA) 166 Harrison v O'Donnell [1919] WN 104 Hooper v Mckenzie, The Times, January 23, 1901 Huxley v Wootton (1912) 29 TLR 132 Koh v Tay [1999] WASC 228 Masling v Motor Hiring Company (Manchester) Limited [1919] 2 KB 538 MGICA (1992) Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236 NMFM Property Pt…
Skinner v Byrnecut Mining Pty Ltd
[2001] WADC 103 Para 9

…The third party has submitted that on the authority of Koh v Tay [1999] WASC 228 per Scott J at par 428, the offer made in the present case was inappropriate. A reading of Scott J's opinion does not, in my view, rule out the making of orders outside the ambit of O 24A, although his Honour obviously preferred the m…
Radonich v Radonich
[2000] WASC 163

…s v Westralian Sands Ltd (1993) 9 WAR 56 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Giumelli v Giumelli [1999] HCA 10 Koh v Tay [1999] WASC 228 Lewandowski v Lovell, unreported; FCt SCt of WA; Library No 960310; 14 June 1996 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 Messiter v Hut…

View all 10 citing cases →

Cases cited in this decision · 4 of 4 shown

Black v Lipovac
[1998] FCA 699

…Calderbank v Calderbank [1975] 3 All ER 333 Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 Black v Lipovac & Ors (1998) Federal Court (FC) 4 June 1998 Dobb v Hackett (1993) 10 WAR 532 Wallace v Baulkham Hills Smash Repairs Pty Ltd (No 2), unreported; SCt of NSW; 21 August 1995…
Multicon Engineering Pty Ltd v Federal Airports Corporation
[1997] NSWCA 214

…Calderbank v Calderbank [1975] 3 All ER 333 Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 Black v Lipovac & Ors (1998) Federal Court (FC) 4 June 1998 Dobb v Hackett (1993) 10 WAR 532 Wallace v Baulkham Hills Smash Repairs Pty Ltd (No 2), unreported; SCt of NSW; 21 August 1995…
MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2)
[1996] FCA 862

…ndemnity costs. The circumstances would have to take the case out of the ordinary or usual category: MGICA (1992) Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236 at 240; 140 ALR 707 at 711”.…
Ltd v Kenny and Good Pty Ltd
[1996] FCA 1746

…“It should not be assumed that the mere writing of a Calderbank letter by a plaintiff making an offer to the defendant which is not less favourable than the judgment recovered generates the same presumptive entitlement to an order for indemnity costs. The circumstances would have to take the case ou…

Legislation cited in this decision · 0

No legislation cited in this case.