Nea Pty Ltd v Magenta Mining Pty Ltd
[2005] WASC 106 (S)
NEA PTY LTD -v- MAGENTA MINING PTY LTD [2005] WASC 106 (S)
| Link to Appeal : | [2007] WASCA 70 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 106 (S) | |
| Case No: | CIV:2348/1996 | 16-20 SEPTEMBER 2002, 3-5 MARCH, 17-21 MAY 2004 & 16 JUNE 2005 | |
| Coram: | EM HEENAN J | 1/06/05 | |
| 16/06/05 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Special orders Plaintiff pay defendant's costs of counterclaim Counterclaiming defendant pay second defendant's costs of counterclaim | ||
| B | |||
| PDF Version |
| Parties: | NEA PTY LTD (ACN 009 248 006) MAGENTA MINING PTY LTD (ACN 054 284 936) GEOFFREY FRANS GROENENBERG |
Catchwords: | Costs Special orders Security for costs Payment out Costs of separate actions before consolidation |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
HEARD : 16-20 SEPTEMBER 2002, 3-5 MARCH, 17-21 MAY 2004 & 16 JUNE 2005 DELIVERED : 1 JUNE 2005
SUPPLEMENTARY
DECISION : 16 JUNE 2005
FILE NO/S : CIV 2348 of 1996
- Consolidated with CIV 1821 of 1998 by order dated 23 September 1999
BETWEEN : NEA PTY LTD (ACN 009 248 006)
- Plaintiff
AND
MAGENTA MINING PTY LTD (ACN 054 284 936)
Defendant
(BY ORIGINAL ACTION)
(Page 2)
MAGENTA MINING PTY LTD (ACN 054 284 936)
Plaintiff
AND
NEA PTY LTD (ACN 009 248 006)
First Defendant
GEOFFREY FRANS GROENENBERG
Second Defendant
(BY COUNTERCLAIM)
Catchwords:
Costs - Special orders - Security for costs - Payment out - Costs of separate actions before consolidation
Legislation:
Nil
Result:
Special orders
Plaintiff pay defendant's costs of counterclaim
Counterclaiming defendant pay second defendant's costs of counterclaim
Category: B
(Page 3)
Representation:
Original Action
Counsel:
Plaintiff : Mr C P Shanahan SC
Defendant : Mr S V Forbes
Solicitors:
Plaintiff : Tottle Partners
Defendant : Corser & Corser
Counterclaim
Counsel:
Plaintiff : Mr S V Forbes
First Defendant : Mr C P Shanahan SC
Second Defendant : Mr C P Shanahan SC
Solicitors:
Plaintiff : Corser & Corser
First Defendant : Tottle Partners
Second Defendant : Tottle Partners
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 4)
1 EM HEENAN J: In this litigation I published reasons for judgment and entered judgment for the counterclaiming defendant, Magenta, on 1 June 2005. Questions of costs and the calculation interest on the damages were stood over for later consideration. Written submissions have been received and I have heard counsel and these points today.
2 The first matter which needs to be addressed is the interest component of the successful defendant's counterclaim. The parties are agreed that calculation of interest in conformity with the conclusions which I reached in the reasons for decision produces a figure of $161,388.21 which should be added to the damages awarded of $259,570.37, resulting in an award of damages to the defendant Magenta on the counterclaim of $420,958.58. I direct that judgment for that aggregate amount be entered in substitution for the earlier reference to $259,570.37 plus interest. That one finite sum will be the quantum of the judgment on the counterclaim.
3 In relation to the costs of the litigation, it is necessary first to take into account that originally two actions were commenced, one by Nea against Magenta for what I will call the unpaid hire charges and incidental expenses. That was defended, so I am told, without a specific set-off defence being pleaded at the early stage. Later Magenta commenced another action against both Nea and Mr Groenenberg for damages. That ultimately became the counterclaim in these proceedings. The two actions were consolidated on 23 September 1999 but it is necessary to deal with the costs of the two actions separately up to the point of consolidation.
4 Because Nea was successful in demonstrating its claim to unpaid hire charges in the proceedings but did not recover any judgment because of the set-off arising from the counterclaim, I consider that Nea is entitled to its costs of the original action for the recovery of unpaid hire charges and incidental expense up to the date of consolidation or until the first time that a defence of set-off in that particular action was pleaded. Accordingly, I order that Magenta pay Nea's costs of those proceedings to be taxed up to the point of consolidation or, as I have said, the first occasion when the defence of set-off in that action was pleaded, whichever is earlier.
5 In relation to the second action commenced by Magenta against Nea and Mr Groenenberg, Magenta has succeeded against Nea but not against Mr Groenenberg. In that action Magenta should have the costs against Nea to be taxed up to the point of consolidation. However, Mr Groenenberg should have his costs of that action against Magenta up
(Page 5)
- to the point of consolidation, such costs to be those costs which in the opinion of the taxing officer were reasonably incurred by Mr Groenenberg in the defence of the action beyond costs incurred by Nea in doing so.
6 That brings me to the position where both actions were consolidated and proceeded in parallel from 23 September 1999 onwards. The difficulty here is to deal with two problems which emerged and significantly affected the trial. In general terms they are that discovery by Magenta was very significantly inadequate. At the trial this inadequacy became patent and necessitated an adjournment and supplementary discovery, on a significant scale, which itself gave rise to additional interlocutory applications arising from disputes in that process. The second major difficulty is that, in the defence of the plaintiff's action and in its own counterclaim, Magenta raised issues: concerning the alleged existence of implied terms by virtue of s 71 of the Trade Practices Act; the inability of Nea to rely on express exclusionary terms in the contract of hire because of the alleged magnitude of the breach of contract or the implied warranty said to have occurred; and, perhaps, most of all, because of the magnitude of Magenta's counterclaim arising from its component for alleged loss of profits which ultimately failed.
7 In relation to the questions of discovery, I consider that special orders as to costs are warranted. While Magenta should be entitled to the costs of giving discovery and allowing inspection of the documents it initially discovered in the action, it should not be entitled to additional costs for supplementary discovery, for supplementary inspection, or for the costs of dealing with Nea's interlocutory applications for additional or supplementary discovery. Similarly, I consider that the adjournment which resulted following 20 September 2002 was largely caused by problems with the inadequacy of Magenta's discovery and, accordingly, Magenta should pay the costs thrown away by reason of that adjournment.
8 To allow these conclusions to be implemented in a practical way upon the taxation of costs, I will, therefore, direct that Magenta shall not be entitled to any costs associated with giving discovery or allowing inspection after its initial discovery and provision of inspection in the action, and that Magenta must pay Nea's costs associated with seeking and obtaining supplementary discovery and inspection.
9 There is another pre-trail issue which requires special attention and that is the costs of the de bene esse hearing to take the evidence of the witness Mr Popp whose deposition was tendered without objection at the trial without him being called. Mr Popp's evidence related largely, if not
(Page 6)
- entirely, to the possible yield of gold from the Hawkins Find operation conducted as Magenta had hoped to conduct it with a view to quantifying the net profits for the Mourillion joint venture through which Magenta could have expected revenue through the operation of the venture.
10 I concluded, for reasons set out in my decision, that that claim for loss of profits failed. Consequently, I consider that Magenta should not be entitled to recover any of the costs of the de bene esse hearing to take the evidence of Mr Popp, and that rather Nea should be awarded the costs of that application and its conduct.
11 I have also been informed that during the course of the litigation Magenta was ordered to pay, and did pay, money into court for security for Nea's costs and additional security for Mr Groenenberg's costs. In relation to the moneys paid into court for the security of Nea's costs, I direct that that money shall now forthwith be paid out of court to Magenta's solicitors whose receipt shall be a sufficient discharge for payment. In relation to the money paid into court for Mr Groenenberg's costs, I direct that that money shall remain in court until the completion of the taxation of Mr Groenenberg's costs and then, after the time fixed for filing objections to the taxing officer's certificate or dealing with any appeal that may be instituted from the decision on taxation, so much of the money in court as would be necessary to satisfy Mr Groenenberg's costs shall be paid out of court to the solicitors for Mr Groenenberg whose receipt shall be sufficient discharge for payment. Any surplus moneys after payment to Mr Groenenberg shall be paid out to the solicitors for Magenta, whose receipt again will be sufficient discharge for that payment. In the event that the money paid into court is insufficient to satisfy Mr Groenenberg's costs, there will be liberty to enforce the amount allowed on taxation after credit has been given for the payment out of court. In each case, where I have referred to payments out of court, this is to include interest, if any, which may have accrued on the moneys while under the control of the court or any other authority.
12 Coming now to the question of the costs of the consolidated actions and the trial, I make the following orders subject to the directions which I have already given: first, that Nea shall pay to Magenta the costs of the consolidated actions from the point of consolidation onwards, such costs to be taxed. However, in relation to the costs of the trial, Magenta shall be limited to recovering costs for eight days of trial including the first, rather than the 13 days occupied, because of the issues upon which Magenta failed in the proceedings.
(Page 7)
13 In relation to allowances to be made for various items on applicable scales of costs, I direct that the taxing officer shall be at liberty to allow what he or she may regard as reasonable costs having regard to the work necessarily done and its responsibility, notwithstanding that that allowance may exceed the maximum prescribed by any item in any applicable scale of costs for the following subheadings:
(a) provision of particulars;
(b) giving discovery;
(c) getting up a case for trial;
(d) counsel fees, and
(e) the transcript.
14 Magenta's costs on taxation are also to include as a disbursement the costs for the reasonable travel and accommodation expenses of the witness, Mr Bilney, for attending to give evidence at trial, in addition to any qualification fees or other expenses associated with him providing his reports.
15 That deals with all the costs of the consolidated proceedings with the exception of those of Mr Groenenberg who was successful in having the counterclaim against him dismissed entirely. I have already directed that he should recover his costs of that action up to the point of consolidation. I now order that he should be entitled to recover his costs of the consolidated proceedings to be taxed from that point onwards but that those costs should be limited to the additional components, if any, incurred in the defence of his claim going beyond the defence which was necessary to be made by Nea itself.
16 I anticipate that there may be some difficulties in making that separation and, accordingly, I reserve liberty to apply on summons on notice for further directions in that respect should that be necessary. Otherwise all reserved costs in the consolidated actions shall be paid by Nea to Magenta except for costs reserved in connection with supplementary discovery, the adjournment of the trial and the de bene esse hearing, in which case those costs, if any, that have been reserved are to be paid by Magenta to Nea.
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