NOMAD MODULAR BUILDING PTY LTD -v- SMITH [2007] WASC 117 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 117 (S)
Case No:	CIV:1361/2007	Heard:	14 15 MAY 2007 & 1 APRIL 2008
Coram:	MASTER SANDERSON	Delivered:	16/05/07
Supplementary Delivered:	17/04/08
No of pages:	7	Judgment Part:	1 of 1
Result:	Order for indemnity costs refused Order for third party to be liable for costs of trial refused Unsuccessful party at trial to pay costs of application for third party discovery
Category:	B
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Parties:	NOMAD MODULAR BUILDING PTY LTD (ACN 071 271 826) NEVILLE SMITH
Catchwords:	Costs Application by successful plaintiff for indemnity costs Application to have third party rendered liable for costs Costs of application for third party discovery Turns on own facts
Legislation:	Nil
Case References:	Dobb v Hacket (1993) 10 WAR 532 Globaltech Pty Ltd v Pareek [2006] WASC 30 (S) HPM Pty Ltd v Fear [2002] WASCA 249 (S) Shepherd v Baster [2006] WASC 176 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : NOMAD MODULAR BUILDING PTY LTD -v- SMITH [2007] WASC 117 (S) CORAM : MASTER SANDERSON HEARD : 14 15 MAY 2007 & 1 APRIL 2008 DELIVERED : 16 MAY 2007 SUPPLEMENTARY
DECISION : 17 APRIL 2008 FILE NO/S : CIV 1361 of 2007 BETWEEN : NOMAD MODULAR BUILDING PTY LTD (ACN 071 271 826)

Plaintiff

AND

NEVILLE SMITH

Defendant

Catchwords:

Costs - Application by successful plaintiff for indemnity costs - Application to have third party rendered liable for costs - Costs of application for third party discovery - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Order for indemnity costs refused

Order for third party to be liable for costs of trial refused
Unsuccessful party at trial to pay costs of application for third party discovery

Category: B

Representation:

Counsel:

Plaintiff : Mr M D Howard

Defendant : Ms P E Cahill

Non-party : Mr D J Garnsworthy

Solicitors:

Plaintiff : DLA Phillips Fox

Defendant : Jackson McDonald

Non-party : Downings Legal

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

Dobb v Hacket (1993) 10 WAR 532
Globaltech Pty Ltd v Pareek [2006] WASC 30 (S)
HPM Pty Ltd v Fear [2002] WASCA 249 (S)
Shepherd v Baster [2006] WASC 176 (S)

(Page 3)

1 MASTER SANDERSON: The outstanding issue between the parties in relation to this matter is the question of costs. Before detailing the issues between the parties, it is necessary to provide some background.

2 The plaintiff issued its writ on 2 April 2007. It sought an injunction restraining the defendant until 1 October 2007 from being employed by, or being engaged in any business activity of, a competing business. By a chamber summons dated 2 April 2007, the plaintiff sought an interlocutory injunction against the defendant. That application was fully argued before Acting Master Chapman on 11 and 13 April 2007. The acting master held that there was a serious question to be tried and that as the balance of…

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.

Continue reading Nomad Modular Building Pty Ltd v Smith

Details

AGLC: Nomad Modular Building Pty Ltd v Smith [2007] WASC 117 (S)
Case: [2007] WASC 117 (S)
Decision Date

CaseChat Overview and Summary

The case of Nomad Modular Building Pty Ltd v Smith involved the Supreme Court of Western Australia and the plaintiff, Nomad Modular Building Pty Ltd, sought various costs orders against the defendant, Neville Smith, and a third party, Australian Portable Buildings Pty Ltd (APB). The plaintiff sought indemnity costs for rejecting settlement offers, an order for APB to be liable for the plaintiff's costs of the trial, and an order for the defendant to bear APB's costs of discovery. The court examined each application in turn, applying relevant legal principles and considering the evidence presented.

The court first considered whether the plaintiff was entitled to indemnity costs for the defendant's refusal to accept settlement offers. The court acknowledged the importance of settlement offers but determined that the defendant's refusal did not necessarily render the defendant's actions unreasonable. The court found that the fact the acting master had granted an interlocutory injunction was not enough to warrant indemnity costs. Furthermore, the court did not see the expedited nature of the trial as a reason to impact the basis for awarding costs.

Secondly, the court considered whether APB should be jointly and severally liable for the plaintiff's costs of the proceedings. The court found that there was an understanding between the defendant and APB that APB would pay the defendant's costs. However, the court held that APB's agreement to underwrite the defendant's costs did not amount to managing the action on behalf of the defendant. The court also found that APB did not cause the action and did not have a direct financial interest in the outcome of the proceedings.

Finally, the court considered the issue of who should bear APB's costs of non-party discovery. The court held that the plaintiff's application for discovery was reasonable and necessary, and that the costs of the application should be borne by the defendant.

In conclusion, the court rejected the plaintiff's applications for indemnity costs, for APB to be liable for the plaintiff's costs of the trial, and for the defendant to bear APB's costs of non-party discovery. Instead, the court ordered that the unsuccessful party at trial should pay the costs of the application for third party discovery.

Orders