Motium Pty Ltd v Arrow Electronics Australia Pty Ltd - [2009] WADC 184 (S)

MOTIUM PTY LTD -v- ARROW ELECTRONICS AUSTRALIA PTY LTD [2009] WADC 184 (S)

Last Update: 30/12/2009

MOTIUM PTY LTD -v- ARROW ELECTRONICS AUSTRALIA PTY LTD [2009] WADC 184 (S)
Link to Appeal:	[2011] WASCA 65 [2011] WASCA 65(S)
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WADC 184 (S)
Case No:	CIV:2346/2007	Heard:	15-17 APRIL & 18 AUGUST 2009
Coram:	SCOTT DCJ	Delivered:	21/12/2009
Location:	PERTH	Supplementary Decision:	23/12/2009
No of Pages:	5	Judgment Part:	1 of 1
Result:	Percentage of costs awarded to plaintiff
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	MOTIUM PTY LTD ARROW ELECTRONICS AUSTRALIA PTY LTD
Catchwords:	Calderbank offer Costs Claim and counterclaim dismissed
Legislation:	Nil
Case References:	Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : MOTIUM PTY LTD -v- ARROW ELECTRONICS AUSTRALIA PTY LTD [2009] WADC 184 (S) CORAM : SCOTT DCJ HEARD : 15-17 APRIL & 18 AUGUST 2009 DELIVERED : 21 DECEMBER 2009

SUPPLEMENTARY
DECISION : 23 DECEMBER 2009 FILE NO/S : CIV 2346 of 2007 BETWEEN : MOTIUM PTY LTD

Plaintiff

AND

ARROW ELECTRONICS AUSTRALIA PTY LTD

Defendant

Catchwords:

Calderbank offer - Costs - Claim and counterclaim dismissed

Legislation:

Nil

Result:

Percentage of costs awarded to plaintiff

(Page 2)

Representation:

Counsel:

Plaintiff : Mr A Metaxas

Defendant : Mr D Harrison

Solicitors:

Plaintiff : Metaxas & Co

Defendant : SRB Legal

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

Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115

(Page 3)

1 SCOTT DCJ: On 3 December 2009 I published my reasons for judgment in this action. Counsel for the plaintiff then told me that he wanted to address me as to a head of damage which he said flowed from my findings. As a consequence I listed the matter for 21 December 2009 to deal with any submission by the plaintiff in that regard and to hear the parties with respect to the question of costs.

2 With respect to costs the plaintiff conceded that the defendant was entitled to an order that the plaintiff pay the defendants costs of the claim and said that the defendant should be ordered to pay the plaintiff's costs of the counterclaim.

3 He submitted that because there was a good deal of time at trial taken up by argument resulting in the defendant amending its pleadings to plead an affirmative case that the plaintiff had failed to mitigate, the appropriate costs order should take into account the extent to which, by that argument, the trial was extended.

4 Counsel for the defendant contended that the requirement to amend the defendant's pleading so as to specifically plead a failure to mitigate on the part of a plaintiff was a "grey" area and that in real terms there was no appreciable delay in the disposition of this matter at trial by reason of the argument concerning amendment.

5 Counsel for the defendant said…

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: [2009] WADC 184 (S)
Decision Date: 21 DECEMBER 2009

CaseChat Overview and Summary

In the Federal Court of Australia, Motium Pty Ltd, the plaintiff, sued Arrow Electronics Australia Pty Ltd, the defendant, over an alleged breach of contract. The plaintiff claimed damages for the defendant's alleged failure to compensate it for certain rebates and incentives, as well as for the defendant's counterclaim for unpaid invoices and interest. The court was required to determine whether the plaintiff was entitled to any damages and whether the defendant was entitled to the amounts claimed in its counterclaim. The court was also required to determine the appropriate allocation of costs between the parties, including the impact of a Calderbank offer on the costs award.

The court found that neither party was entitled to any damages or interest and dismissed both the claim and counterclaim. The court held that the plaintiff had not provided sufficient evidence to support its claim for damages and that the defendant's counterclaim was statute-barred. The court also found that the plaintiff's Calderbank offer, which was made after the commencement of the defendant's counterclaim, was not a "without prejudice" offer and therefore could be taken into account when determining the costs award. The court held that the plaintiff was entitled to a percentage of its costs, reflecting the fact that it had been successful on the main issues in the case.

The court held that the plaintiff was entitled to 75% of its costs, reflecting the fact that it had been successful on the main issues in the case but had not achieved a complete victory. The court held that the defendant was entitled to 50% of its costs, reflecting the fact that it had been successful on some issues but not on the main issues. The court held that the plaintiff's Calderbank offer was a relevant consideration in determining the costs award and that the defendant was entitled to a discount on its costs to reflect the fact that the plaintiff had made a genuine attempt to settle the case. The court held that the appropriate discount was 15%, which reflected the fact that the Calderbank offer was made after the commencement of the defendant's counterclaim.

The court ordered that the plaintiff was entitled to 75% of its costs, that the defendant was entitled to 50% of its costs, and that the defendant's costs were to be reduced by 15% to reflect the Calderbank offer. The court also ordered that the claim and counterclaim be dismissed with no orders as to costs between the parties. The court held that the appropriate allocation of costs reflected the respective successes and failures of the parties and that the Calderbank offer was a relevant consideration in determining the costs award.

Orders

Orders of the court

Percentage of costs awarded to plaintiff

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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