Laing O'Rourke (BMC) Limited (Formerly Barclay Mowlem Construction Ltd) v Dampier Port Authority
[2007] WASC 87 (S)
•18 APRIL 2007
LAING O'ROURKE (BMC) LIMITED (FORMERLY BARCLAY MOWLEM CONSTRUCTION LTD) -v- DAMPIER PORT AUTHORITY [2007] WASC 87 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 87 (S) | |
| Case No: | CIV:1389/2006 | 19 DECEMBER 2006 | |
| Coram: | MARTIN CJ | 18/04/07 | |
| 18/04/07 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Costs of the appeal and the hearing before the Registrar be in the cause | ||
| B | |||
| PDF Version |
| Parties: | LAING O'ROURKE (BMC) LIMITED (FORMERLY BARCLAY MOWLEM CONSTRUCTION LTD) (ACN 009 830 460) DAMPIER PORT AUTHORITY |
Catchwords: | Costs Manner in which to assess costs thrown away as a result of an amendment to statement of claim. Costs Costs of application to Registrar in relation to objections and costs of appeal from below. |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 18 APRIL 2007 FILE NO/S : CIV 1389 of 2006 BETWEEN : LAING O'ROURKE (BMC) LIMITED (FORMERLY BARCLAY MOWLEM CONSTRUCTION LTD) (ACN 009 830 460)
- Appellant
AND
DAMPIER PORT AUTHORITY
Respondent
Catchwords:
Costs - Manner in which to assess costs thrown away as a result of an amendment to statement of claim.
Costs - Costs of application to Registrar in relation to objections and costs of appeal from below.
(Page 2)
Legislation:
Nil
Result:
Costs of the appeal and the hearing before the Registrar be in the cause
Category: B
Representation:
Counsel:
Appellant : Mr C G Colvin SC
Respondent : Mr C P Stevenson
Solicitors:
Appellant : Mallesons Stephen Jaques
Respondent : Clayton Utz
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MARTIN CJ: There are two matters that remain outstanding in relation to the appeal which I heard on 19 December 2006. I have just published my reasons for allowing the appeal. I made an advance copy of those reasons available to the parties a fortnight ago and in doing so, I invited submissions as to the amount I was proposing to fix by way of costs in lieu of the order for taxation made by the Registrar. Those costs are to be awarded to the respondent as part of the costs thrown away as a result of the plaintiff appellant's amendment of the statement of claim.
2 In my published reasons, I proposed to adopt, as a surrogate for the identification of those portions of the schedule of objections prepared by the respondent that may have been properly and reasonably advanced, an alternative method of calculating an amount to be paid to the respondent; and in applying that method, I arrived at the sum of $14,000.
3 I invited submissions from the parties with respect to that methodology and calculation because I had not disclosed it to them in the course of argument. Since then, each party has indicated that they do not oppose that methodology or calculation and therefore I propose to make orders that the judgment of the Registrar be set aside and in lieu thereof there be substituted orders that the appellant pay as part of the costs thrown away by reason of the amendment of the statement of claim the costs of the respondent in responding to the original statement of claim in an amount fixed at $14,000.
4 The second outstanding matter concerns the costs of the application to the Registrar and the costs of the appeal to me. Dealing first with the costs of the application to the Registrar, the position of the parties before the Registrar was that the respondent sought an order for its costs of preparing the schedule of objections, to which I have referred, and had estimated those costs in an amount in excess of $100,000.
5 The appellant on the other hand accepted that an order should be made giving the respondent costs thrown away by reason of the amendment, but opposed any order in respect of the costs of preparing the schedule of objections, any lifting of the scale and any order that the costs be payable forthwith.
6 In my view, it seems that each of the parties have had some measure of success having regard to their positions before the Registrar. From the respondent's perspective, it has had a measure of success in that it has received an amount in respect of its costs of preparing the schedule of objections; being, my surrogate assessment of the costs of that portion of
(Page 4)
- the schedule that I take to have been reasonably and properly incurred in an amount of $14,000.
7 It has also been partially successful, to the extent that that amount exceeds the scale, and it has also achieved an order that those costs be payable forthwith. On the other hand, the appellant has also been partially successful in that the amount of over $100,000 that was sought has been very substantially reduced.
8 Similar considerations apply in relation to the appeal before me. There were issues before me raised by the appellant in respect of the question of whether the Registrar had fallen into error. I did not consider it was necessary or appropriate to resolve those issues. There were also issues before me with respect to whether costs of conferral could be recovered and I resolved those issues adversely to the appellant.
9 In relation to the central question concerning the costs of the schedule, the position of the parties was much the same as it had been before the Registrar. The respondent's position was that the respondent should be entitled to recover its costs of the preparation of the schedule. The appellant's position was that the respondent should not be entitled to recover any of the costs of the preparation of the schedule. I came to the view that the respondent should receive that portion of the costs of the preparation of the schedule that were properly and reasonably incurred and adopted a surrogate method of assessing those costs; so to that extent, the respondent was partially successful.
10 Then again, the appellant was partially successful because it had removed the risk of the assessment of the costs of the preparation of the schedule being substantially greater than my assessment and closer to the amount claimed by the respondent which, as I have said, was in excess of $100,000.
11 It is also appropriate for me to bear in mind that the issues arose with respect to the costs of the preparation of the schedule because of the appellant's withdrawal of the first pleading. The appellant has accepted that an inference of acceptance of the inadequacy of that pleading can be drawn from that fact. It is also fair to say that there was some uncertainty of practice and procedure in relation to issues of this kind arising from the process of conferral that has not been fully resolved by prior decisions.
12 In the result the position at which I arrived on appeal was not substantially different to the position of the Registrar in the sense that we each concluded that the respondent should recover that portion of its costs
(Page 5)
- of preparing the schedule which were properly and reasonably incurred. The Registrar proposed to do that at taxation, presumably by going through the schedule. I adopted a rather different method of assessment, but in the result the position was substantively the same.
13 I would apprehend that this appeal was brought because of the respondent's claim for a sum in excess of $100,000. Had a more modest sum been claimed, it may be more likely that the appellant would have been prepared to take its risk in relation to taxation.
14 The view that I take in relation to the proceedings both before the Registrar and on appeal, is that each party has had some measure of success and each party has had some measure of failure. It seems, to me, that in those circumstances, the proper exercise of my discretion is to regard the costs that the parties have incurred as an unfortunate aspect of the way in which this litigation has been conducted. Therefore, the proper exercise of my discretion is to direct that those costs should be borne by the party who is ultimately held to be responsible for the costs of the litigation generally. I propose, therefore, to order that the costs of the application to the Registrar and the costs of the appeal to me be in the cause.
15 That means the party ultimately responsible for them will be the party who is found to have been responsible for the generation of this litigation. I think these costs are properly regarded as a part of the overall cost of that litigation.
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