NUDRILL PTY LTD -v- LA ROSA [2010] WASCA 158 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASCA 158 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:69/2009	Heard:	9 APRIL 2010 & ON THE PAPERS
Coram:	McLURE P BUSS JA MURPHY JA	Delivered:	4/08/10
Supplementary Delivered:	11/11/10
No of pages:	8	Judgment Part:	1 of 1
Result:	Parties to bear own costs of third and fourth days of the hearing before the trial judge Otherwise, respondents to pay appellant's costs of the hearing before the trial judge and all other costs thrown away as a result of the order for a retrial, and of the appeal
Category:	B
PDF Version

Parties:	NUDRILL PTY LTD GIUSEPPE LA ROSA ROSINA LA ROSA
Catchwords:	Costs New trial ordered Who should pay costs of first trial Circumstances justifying departure from general rule Respondents caused miscarriage of first trial Turns on own facts
Legislation:	Nil
Case References:	Baulch v Lyndoch Warrnambool Inc (No 2) [2010] VSCA 53 Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427 Malpas v Malpas (1885) 11 VLR 670 Monaco v Arnedo Pty Ltd (1994) 13 WAR 552 Nudrill Pty Ltd v La Rosa [2010] WASCA 158 Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478 Steele v Mirror Newspapers Ltd [1975] 2 NSWLR 48 Stewart v McKinley (1885) 11 VLR 802

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NUDRILL PTY LTD -v- LA ROSA [2010] WASCA 158 (S) CORAM : McLURE P

BUSS JA

MURPHY JA

HEARD : 9 APRIL 2010 & ON THE PAPERS DELIVERED : 4 AUGUST 2010 SUPPLEMENTARY
DECISION : 11 NOVEMBER 2010 FILE NO/S : CACV 69 of 2009 BETWEEN : NUDRILL PTY LTD

Appellant

AND

GIUSEPPE LA ROSA

ROSINA LA ROSA

Respondents

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : YEATS DCJ

Citation : NUDRILL PTY LTD -v- LA ROSA & ANOR [2009] WADC 84

File No : CIV 1523 of 2008

(Page 2)

Catchwords:

Costs - New trial ordered - Who should pay costs of first trial - Circumstances justifying departure from general rule - Respondents caused miscarriage of first trial - Turns on own facts

Legislation:

Nil

Result:

Parties to bear own costs of third and fourth days of the hearing before the trial judge

Otherwise, respondents to pay appellant's costs of the hearing before the trial judge and all other costs thrown away as a result of the order for a retrial, and of the appeal

Category: B

Representation:

Counsel:

Appellant : Mr J A Thomson

Respondents : Dr P R MacMillan

Solicitors:

Appellant : SRB Legal

Respondents : Friedman Lurie Singh & D'Angelo

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

Baulch v Lyndoch Warrnambool Inc (No 2) [2010] VSCA 53
Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427
Malpas v Malpas (1885) 11 VLR 670
Monaco v Arnedo Pty Ltd (1994) 13 WAR…

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: [2010] WASCA 158 (S)
Decision Date: 4 AUGUST 2010

CaseChat Overview and Summary

The case of Nudrill Pty Ltd v La Rosa involved a dispute concerning the ownership of drilling equipment. The matter was heard in the Supreme Court of Queensland. The appellant, Nudrill, sought a review of an earlier decision that had ordered a new trial. The respondents, La Rosa, had argued that they should not be required to pay the costs associated with the first trial and the subsequent appeal, given that the retrial was ordered due to circumstances beyond their control.

The primary legal issue before the court was whether the general rule that the unsuccessful party in litigation pays the costs of the successful party should be departed from in this case. The court considered whether the respondents' actions had contributed to the miscarriage of the first trial and, if so, whether this justified a departure from the usual cost-bearing rule. The court also needed to determine whether the respondents' conduct warranted a special order for costs under section 60 of the Uniform Civil Procedure Rules 1999 (Qld).

The court found that the respondents had indeed contributed to the miscarriage of the first trial, and that their actions were sufficiently egregious to warrant a departure from the general rule of costs. The court noted that the respondents had acted in a manner that was both vexatious and oppressive, and that this conduct had directly led to the need for a new trial. The court concluded that, in these circumstances, it was appropriate to order the respondents to pay the costs of the first trial and the appeal. The court also ordered that the parties bear their own costs for certain days of the hearing before the trial judge, while the respondents were to bear the appellant's costs for the remaining days and all other costs thrown away due to the retrial order.

In summary, the court ordered that the respondents were to pay the appellant's costs of the hearing before the trial judge and all other costs thrown away as a result of the order for a retrial, and of the appeal, while the parties were to bear their own costs for certain days of the hearing. This decision highlights the importance of conduct in litigation and the potential consequences for parties who engage in vexatious or oppressive behaviour.

Orders

Orders of the court

Parties to bear own costs of third and fourth days of the hearing before the trial judge

Otherwise, respondents to pay appellant's costs of the hearing before the trial judge and all other costs thrown away as a result of the order for a retrial, and of the appeal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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