Link Projects Australasia Pty Ltd v Katina Pty Ltd - [2001] WADC 138

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: LINK PROJECTS AUSTRALASIA PTY LTD -v- KATINA PTY LTD [2001] WADC 138

CORAM: LA JACKSON DCJ

HEARD: 13 JUNE 2001

DELIVERED : 13 JUNE 2001

PUBLISHED : 15 JUNE 2001

FILE NO/S: CIV 2950 of 2000

BETWEEN: LINK PROJECTS AUSTRALASIA PTY LTD
Plaintiff
AND
KATINA PTY LTD
Defendant

Catchwords:

Practice and procedure - Appeal from a decision of a registrar - Costs of an application for summary judgment

Legislation:

Cheques Act 1986 (C'th), s 115(9)

Supreme Court Rules, O 14, r 3(2)

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff: Mr M D Cuerden
Defendant: Mr S Martella

Solicitors:

Plaintiff: Hammond Worthington
Defendant: Martella & Co

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

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
State Bank of Victoria v Parry [1989] WAR 240

Case(s) also cited:

Nil

LA JACKSON DCJ: This is an appeal from a costs order being part of a decision of Deputy Registrar Wallace dated 2 May 2001. It was heard by me on 13 June 2001 and on that day was dismissed. These are my reasons for dismissing the appeal.
An appeal from a Registrar of a District Court is a hearing de novo. Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.
The plaintiff's claim against the defendant is for breach of a contract by the defendant to supply concrete panels to extensions to a commercial building at the Phoenix Shopping Centre. The claim is for damages of $47,584.97. The defence denied a breach of contract and counterclaimed for damages for wrongful rescission of the contract in the sum of $100,778.25 and in addition claimed the sum of $27,482.40 being the subject of a cheque and the subject of the proceedings giving rise to this appeal.
In the course of the performance of the contract the defendant sent an invoice to the plaintiff for part of the work. The plaintiff sent the defendant a cheque for $27,482.40 which cheque was duly delivered to the defendant's bank. It appears the bank has lost the cheque. Pursuant to s 115 of the Cheques Act 1986 (C'th) (mistakenly referred to as the Cheques and Payments Orders Act but the name had been changed with effect from 1 December 1998), the defendant gave notice to the plaintiff requiring a replacement cheque. Ultimately the plaintiff, relying upon the defendant's alleged weak financial position, refused to supply a replacement cheque. On 16 February 2001 the defendant applied for summary judgment with respect to the cheque and the sum of $27,482.40.
The matter came on before Deputy Registrar Wallace on 20 March 2001. The plaintiff did not dispute the defendant's entitlement to summary judgment but argued there should be a stay. Its argument on the stay was based on O 14, r 3(2) of the Supreme Court Rules which provides:
"The Court may, by order and subject to such conditions, if any, as may be just, stay execution of any judgment given against a defendant under this rule until after the trial of any counterclaim made or raised by the defendant in the action."
The defendant opposed the application for a stay arguing it was entitled to receive the replacement cheque.
After argument, Deputy Registrar Wallace reserved her judgment giving the parties an opportunity to file further material. On 2 May 2001 she delivered her judgment in which she gave judgment to the defendant. She refused a stay of the order but instead ordered the sum of $27,482.40 to be paid into Court by the plaintiff and to remain in Court pending the disposal of the action. In doing so she relied upon section 115(9) of the Cheques Act wich provides a court may make an order "on such terms and conditions as it considers just and equitable". She also ordered the plaintiff to pay the costs of the summary judgment application.
The plaintiff argues that the defendant should have the costs of the application for summary judgment but not the costs of the hearing of the argument. It argues that it conceded before the hearing that the defendant was entitled to summary judgment with respect to the cheque and that the argument before Deputy Registrar Wallace solely related to the question of stay. The plaintiff argues it was successful or substantially successful in the argument on the stay and that accordingly it should have the costs of the argument or at worst each party should pay its own costs.
I do not accept that reasoning.
The plaintiff relies upon the general rule that the successful party gets the costs. In this case the application was for a stay. The stay would have had two consequences. Firstly the plaintiff would not have been required to have paid the money and secondly the defendant would not have been entitled to have received it. Deputy Registrar Wallace has taken a central course. The plaintiff has therefore not been successful. But of course, neither has the defendant.
An application for a stay seeks the Court to exercise a discretion. To that extent it is seeking an indulgence by the Court because in the ordinary course a party with a judgment is entitled to the fruits of that judgment. In my view, where a party can be seen to be seeking an indulgence of the Court then it will often have to pay the costs of such an application even in circumstances where the other side has unsuccessfully opposed it.
In my opinion it matters not that a stay of execution on a summary judgment may generally be granted where there is a counterclaim of at least the amount of the judgment (State Bank of Victoria v Parry [1989] WAR 240). The judgment debtor is still seeking an indulgence even though it may commonly be granted. For a judgment creditor to oppose such an application, even if partly or wholly unsuccessfully, he should not be deprived of his costs of such an opposition unless in some way he has acted unreasonably or without a bona fide argument he should be entitled to the fruits of his judgment. This is a case of a cheque which has been lost. I agree there is a difference between a cheque being lost and one being dishonoured but the presentation of a cheque is an unconditional payment. By giving the defendant at cheque for $27,482.40, the plaintiff has in substance paid that sum to the defendant. The loss of the cheque was entirely fortuitous. In the ordinary course the money would have been received by the defendant. The plaintiff's case, as I would understand it, is that the cheque was paid before the breach of contract alleged was discovered and that had the breach been discovered then the cheque would never have been paid. Nonetheless, it was.
In the circumstances I consider the opposition by the defendant to the plaintiff's claim was not inappropriate. The plaintiff has failed to obtain a stay to the extent that it has been ordered to pay the money into Court. Section 115(9) of the Cheques Act seems to me to express in as wide terms as possible that the Court has an unfettered discretion (subject, of course, to acting judicially) when dealing with an application under the Act. In the circumstances I think an order that the plaintiff pay the defendant's costs is appropriate and that accordingly the appeal failed.