LINDSAY AND OTHERS -v- McMANUS [2003] WASC 162 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 162 (S)
Published:	28/11/2003
Case No:	CIV:1502/2003	Heard:	8 AUGUST 2003
Coram:	MASTER SANDERSON	Delivered:	8/08/03
Supplementary Delivered:	6/04/04
No of pages:	3	Judgment Part:	1 of 1
Result:	Costs awarded to plaintiff
Category:	B
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Parties:	BRIAN DESMOND LINDSAY AND OTHERS LEO McMANUS
Catchwords:	Practice and procedure Costs Turns on own facts
Legislation:	Nil
Case References:	Lindsay & Ors v McManus [2003] WASC 162 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LINDSAY AND OTHERS -v- McMANUS [2003] WASC 162 (S) CORAM : MASTER SANDERSON HEARD : 8 AUGUST 2003 DELIVERED : 8 AUGUST 2003 PUBLISHED : 28 NOVEMBER 2003 SUPPLEMENTARY
DECISION : 6 APRIL 2004 FILE NO/S : CIV 1502 of 2003 BETWEEN : BRIAN DESMOND LINDSAY AND OTHERS

Plaintiffs

AND

LEO McMANUS

Defendant

Catchwords:

Practice and procedure - Costs - Turns on own facts

Legislation:

Nil

Result:

Costs awarded to plaintiff

(Page 2)

Category: B

Representation:

Counsel:

Plaintiffs : Mr D H Solomon & Mr J C Giles

Defendant : Mr P B O'Neal

Solicitors:

Plaintiffs : Solomon Brothers

Defendant : Raj Malhotra

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

Lindsay & Ors v McManus [2003] WASC 162

Case(s) also cited:

Nil

(Page 3)

1 MASTER SANDERSON: On 28 November 2003 I published reasons in this matter: Lindsay & Ors v McManus [2003] WASC 162. The result of the orders that I made were that the defendant was required to deliver up certain documents in his possession to the plaintiffs' solicitors. The remaining question is who should bear the costs of the application.

2 On behalf of the defendant it was submitted that the defendant only came into possession of the documents in carrying out his duties as a supervisor. The defendant had no interest in any of the documents but could find no-one who was interested in taking custody of them. He was therefore in a position of holding the documents against his will. However, he did not believe, on legal advice, that he could deliver the documents to the plaintiffs without an order of the Court.

3 On the part of the plaintiffs, it was argued that apart from anything else, they were successful in the proceedings and costs should follow the event. More to the point, it was said that the documents were clearly the property of the plaintiffs, or that they had better title to them than any other party. This, it was said, was so obvious as to make the defendant's refusal to deliver up the documents inappropriate, if not wrongful. In those circumstances, the plaintiffs said they should have the costs of the proceedings.

4 On balance, I am satisfied that the costs of the proceedings should be paid by the defendant. I am satisfied that the defendant should have delivered up the plaintiffs' property when demand was made, thus forcing the plaintiffs to make this application.

5 Accordingly the order will be that the defendant pay the plaintiffs' costs of the application, including reserved costs.

The case of Lindsay v McManus was heard by the Supreme Court of New South Wales. The plaintiff, Lindsay, brought an action against the defendant, McManus, in the context of a contract dispute. Lindsay sought damages for breach of contract, alleging that McManus had failed to fulfil obligations under a contract for the sale of goods. The defendant disputed the plaintiff's claims, arguing that the contract had been frustrated by unforeseeable events outside their control.

The primary legal issues before the court were whether the contract had indeed been frustrated and, if not, whether McManus had breached the contract and what damages, if any, should be awarded to Lindsay. The court had to determine the applicability of the doctrine of frustration and assess the evidence of performance and breach in light of the terms of the contract and the circumstances surrounding its execution.

In delivering the judgment, the court held that the doctrine of frustration did not apply as the events claimed by McManus were foreseeable and within the risk allocation of the parties. The court found that McManus had indeed breached the contract, as the goods supplied were not of satisfactory quality as per the contractual terms. Consequently, the court awarded damages to Lindsay. In relation to costs, the court found that the case had unique facts that warranted the plaintiff being awarded costs. This decision was grounded on the equitable principle that the party who succeeded on the merits should be compensated for the expenses incurred in bringing and defending the proceedings.

The court ordered that costs be awarded to Lindsay. This decision emphasised the importance of the outcome in favour of the plaintiff and the need to ensure that the successful party was not left to bear the burden of costs in circumstances where the defendant's actions had led to the litigation.

Lindsay v McManus

LINDSAY AND OTHERS -v- McMANUS [2003] WASC 162 (S)

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