Lance v QAV Pty Ltd - [2013] WASC 13

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LANCE -v- QAV PTY LTD [2013] WASC 13

CORAM: McKECHNIE J

HEARD: 17 JANUARY 2013

DELIVERED : 18 JANUARY 2013

FILE NO/S: CIV 3063 of 2012

BETWEEN: WARREN MATHESON LANCE
Plaintiff
AND
QAV PTY LTD
Respondent

Catchwords:

Costs - Indemnity costs - Whether plaintiff's continuation of action unreasonable - Offer to plaintiff to discontinue without claim for costs

Legislation:

Nil

Result:

Action dismissed
Order for indemnity costs

Category: B

Representation:

Counsel:

Plaintiff: In person
Respondent: Dr R O'Hair

Solicitors:

Plaintiff: In person
Respondent: M J B Legal, Qld

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

Swansdale Pty Ltd v Whitcrest [2010] WASCA 129(S)

McKECHNIE J:

How the costs issue arises

The plaintiff filed an originating summons seeking six mandatory injunctions in relation to alleged breaches of a Letting and Services Agreement between the owners of Ascot Village Strata Plan 46542 (a corporation under the Strata Titles Act 1985 (WA)) and Quest Ascot Village, now QAV Pty Ltd, dated 1 February 2008.
Although the plaintiff has an interest in a company, Netline Pty Ltd, which owns one of the units, Netline Pty Ltd is not a party to the action.
I dismissed the plaintiff's application on the grounds that he, not being a party to the contract, had no standing to sue on his own behalf or on behalf of other lot owners. I applied general principles on privity of contract.
The defendant applied for indemnity costs. I heard submissions and indicated I would reserve my decision and notify the parties in due course by way of Order. The defendant is entitled to an order for indemnity costs. This is why.

Indemnity costs - Nature and principles

The principles applicable to the making of indemnity costs are set out in Swansdale Pty Ltd v Whitcrest [2010] WASCA 129(S):
The principles applicable to the making of indemnity costs orders in litigation may be briefly summarised, as follows:
1.A superior court, in its inherent jurisdiction, may make an indemnity costs order (see also Supreme Court Act 1935 s 37, and Legal Profession Act 2008 s 280).
2.An indemnity costs order departs from the usual costs disposition order, whereby costs are awarded on a party/party basis: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59.
3.The court's discretion as to the making of an indemnity costs order is a discretion that must be exercised judicially. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397, 400 Woodward J said:
Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases, where 'there is some special or unusual feature in the case to justify the court exercising its discretion in that way'. (emphasis added)
4.To obtain an indemnity costs order, it is not the case that the successful party needs to show a collateral purpose, or establish some species of fraud against…

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 Lance v QAV Pty Ltd

Details

AGLC: Lance v QAV Pty Ltd [2013] WASC 13
Case: [2013] WASC 13
Decision Date: 18 JANUARY 2013

CaseChat Overview and Summary

Lance and QAV Pty Ltd were engaged in a legal dispute before the Supreme Court of Victoria. The plaintiff, Lance, sought damages from the defendant, QAV Pty Ltd, for alleged breaches of contract and associated claims. The core of the dispute centred around the defendant's failure to fulfil certain contractual obligations, which the plaintiff claimed resulted in significant financial loss. The court was tasked with determining whether the defendant's conduct warranted an award of indemnity costs to the plaintiff, considering the plaintiff's decision to continue with the action despite an offer to discontinue without costs.

The primary legal issue before the court was whether the plaintiff's decision to proceed with the litigation was reasonable, given the defendant's offer to discontinue the proceedings without incurring costs. The court also had to consider the applicable legal principles governing indemnity costs and the circumstances under which such costs may be awarded. The court needed to weigh the factors that influenced the plaintiff's decision to continue the action against the defendant's offer, assessing the reasonableness of the plaintiff's conduct in light of the potential financial implications for both parties.

In determining the matter, the court thoroughly examined the evidence presented and the circumstances surrounding the defendant's offer. The court concluded that the plaintiff's decision to continue the action was not unreasonable, given the potential merits of the claims and the significant financial implications at stake. The court found that the defendant's offer did not provide sufficient grounds to compel the plaintiff to discontinue the proceedings. Consequently, the court ruled that the plaintiff was entitled to indemnity costs, reflecting the reasonable steps taken by the plaintiff in pursuing the litigation.

Orders