Monaveen Pty Ltd v ABB Service Pty Ltd - [2007] WASCA 273 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	MONAVEEN PTY LTD -v- ABB SERVICE PTY LTD [2007] WASCA 273 (S)

CORAM

: MARTIN CJ

WHEELER JA
PULLIN JA

HEARD	:	5 NOVEMBER 2007
DELIVERED	:	20 DECEMBER 2007
SUPPLEMENTARY
DECISION	:	14 MAY 2008
FILE NO/S	:	CACV 64 of 2007
BETWEEN	:	MONAVEEN PTY LTD (Receivers and Managers Appointed) (Administrator Appointed) Appellant
AND
ABB SERVICE PTY LTD Respondent
ON APPEAL FROM:
Jurisdiction	:	SUPREME COURT OF WESTERN AUSTRALIA

Coram

: TEMPLEMAN J

Citation

:	MONAVEEN PTY LTD (Receivers and Managers Appointed) (Administrator Appointed) -v- ABB SERVICE PTY LTD (formerly known as ABB Engineering Construction Pty Ltd) [2006] WASC 263 (S)

File No

:	CIV 2302 of 1998

Catchwords:

Practice and procedure - Costs - Protracted interlocutory proceedings at first instance - In what circumstances is it appropriate for each party to bear its own costs

Legislation:

Rules of the Supreme Court (WA), O 66 r 1

Result:

The parties bear their own costs of the respondent's application to dismiss the
appellant's claim for want of prosecution

The parties bear their own costs of the appeal

Category: B

Representation:

Counsel:

Appellant	:	Mr G H Murphy SC
Respondent	:	Mr K J Martin QC & Ms R J Lee

Solicitors:

Appellant	:	Talbot Olivier
Respondent	:	Minter Ellison

[2007] WASCA 273 (S)

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

Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008]

WASCA 23 (S)

Monaveen Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) [2004] WASC 5
Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273

JUDGMENT OF THE COURT

[2007] WASCA 273 (S)

JUDGMENT OF THE COURT: By a decision published on 20 December 2007, this Court granted Monaveen Pty Ltd (Monaveen) leave to appeal from the decision of the primary judge dismissing its claim against ABB Service Pty Ltd (ABB) for want of prosecution, and upheld that appeal (Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273). The Court dismissed ABB's application to dismiss Monaveen's claim for want of prosecution and directed that the case be entered into the Commercial and Managed Cases List.

2 The parties have been unable to agree in respect of the appropriate
orders to be made in relation to the costs of ABB's application to dismiss Monaveen's claim for want of prosecution and in relation to the costs of the appeal. Directions have been made for the exchange of written submissions in relation to those costs.
3 Monaveen submits that ABB should be ordered to pay its costs of the
application for an order dismissing the action for want of prosecution and of the appeal. Monaveen further submits that it should have a certificate for Senior Counsel in respect of the appeal. Differing views as to the appropriateness of the court determining the question of whether…

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.

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Details

Case: [2007] WASCA 273 (S)
Decision Date: 20 DECEMBER 2007

CaseChat Overview and Summary

Monaveen Pty Ltd, the appellant, sought leave to appeal a decision made by the primary judge, which dismissed its claim against ABB Service Pty Ltd, the respondent, for want of prosecution. The appeal was heard and determined by the Supreme Court of Western Australia. ABB argued that both parties should bear their own costs related to the application to dismiss the claim for want of prosecution and the subsequent appeal.

The primary legal issue before the court was whether it was appropriate for each party to bear its own costs in the context of protracted interlocutory proceedings at first instance. This issue was crucial in determining the financial responsibility of the parties involved in the lengthy and complex litigation process.

The court, in its reasoning, considered the protracted nature of the interlocutory proceedings and the fact that both parties were involved in the proceedings that led to the dismissal of the claim for want of prosecution. The court found that it was appropriate for each party to bear its own costs, reflecting the nature of the litigation and the circumstances leading to the dismissal of the claim. This decision aimed to ensure that neither party would be unduly burdened by the costs associated with the unsuccessful proceedings.

As a result of the court's decision, each party was ordered to bear its own costs of the application to dismiss the claim for want of prosecution and the appeal. This outcome was in line with the court's determination that the circumstances warranted each party to be responsible for its own legal expenses.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: By a decision published on 20 December 2007, this Court granted Monaveen Pty Ltd (Monaveen) leave to appeal from the decision of the primary judge dismissing its claim against ABB Service Pty Ltd (ABB) for want of prosecution, and upheld that appeal (Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273). The Court dismissed ABB's application to dismiss Monaveen's claim for want of prosecution and directed that the case be entered into the Commercial and Managed Cases List. ABB submits that each party should bear its own costs of the application to dismiss for want of prosecution and of the appeal.

Ratio Decidendi

Legal Principle Established

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