O'ROURKE -v- P & B CORPORATION PTY LTD [2008] WASC 36 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 36 (S)
Case No:	CIV:1930/2007	Heard:	29, 30, 31 JANUARY & 1 FEBRUARY 2008
Coram:	MARTIN CJ	Delivered:	13/03/08
Supplementary Delivered:	15/04/08
No of pages:	12	Judgment Part:	1 of 1
Result:	Plaintiffs to pay the defendant's costs of the action
Category:	B
PDF Version

Parties:	DEBORAH CAROL O'ROURKE GRANT NATHAN O'ROURKE DAMIEN HARRIS RODNEY NOEL WEGNER ROBIN ANNE WEGNER GERALDINE MARY JEAN STEVENS GOLDPEAK PTY LTD (ACN 095 419 686) HILARY ANN STEVENS ANNA TERESA CARGER MADISON ENTERPRISES PTY LTD (ACN 008 961 055) ELIZABETH BAILEY ALAN RICHARD BAILEY KRYSTEN SARA LEOPARDI ANN STUART FLOWER SEAN PHILLIP LENNON WENDY GAYNOR LENNON P & B CORPORATION PTY LTD (ACN 109 365 291)
Catchwords:	Practice and procedure Costs of trial Indemnity costs
Legislation:	Legal Practice Act 2003 (WA), s 215 Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA) Rules of the Supreme Court 1971 (WA), O 66 r 1
Case References:	Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 Heartlink Ltd v Jones [2007] WASC 254 (S) Lo Presti v Ford Motor Company of Australia Ltd [No 2] [2008] WASC 12 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : O'ROURKE -v- P & B CORPORATION PTY LTD [2008] WASC 36 (S) CORAM : MARTIN CJ HEARD : 29, 30, 31 JANUARY & 1 FEBRUARY 2008 DELIVERED : 14 MARCH 2008 SUPPLEMENTARY
DECISION : 15 APRIL 2008 FILE NO/S : CIV 1930 of 2007 BETWEEN : DEBORAH CAROL O'ROURKE

GRANT NATHAN O'ROURKE

First Plaintiffs

DAMIEN HARRIS

Second Plaintiff

RODNEY NOEL WEGNER

ROBIN ANNE WEGNER

Third Plaintiffs

GERALDINE MARY JEAN STEVENS

Fourth Plaintiff

GOLDPEAK PTY LTD (ACN 095 419 686)

Fifth Plaintiff

HILARY ANN STEVENS

Sixth Plaintiff

ANNA TERESA CARGER

Seventh Plaintiff

(Page 2)

MADISON ENTERPRISES PTY LTD (ACN 008 961 055)

Eighth Plaintiff

ELIZABETH BAILEY

ALAN RICHARD BAILEY

Ninth Plaintiffs

KRYSTEN SARA LEOPARDI

ANN STUART FLOWER

Tenth Plaintiffs

SEAN PHILLIP LENNON

WENDY GAYNOR LENNON

Eleventh Plaintiffs

AND

P & B CORPORATION PTY LTD (ACN 109 365 291)

Defendant

Catchwords:

Practice and procedure - Costs of trial - Indemnity costs

Legislation:

Legal Practice Act 2003 (WA), s 215

Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA)
Rules of the Supreme Court 1971 (WA), O 66 r 1

Result:

Plaintiffs to pay the defendant's costs of the action

(Page 3)

Category: B

Representation:

Counsel:

First Plaintiffs : Mr D J Garnsworthy

Second Plaintiff : Mr D J Garnsworthy

Third Plaintiffs : Mr D J Garnsworthy

Fourth Plaintiff : Mr D J Garnsworthy

Fifth Plaintiff : Mr D J Garnsworthy

Sixth Plaintiff : Mr D J Garnsworthy

Seventh Plaintiff : Mr D J Garnsworthy

Eighth Plaintiff : Mr D J Garnsworthy

Ninth Plaintiffs : Mr D J Garnsworthy

Tenth Plaintiffs : Mr D J Garnsworthy

Eleventh Plaintiffs : Mr D J Garnsworthy

Defendant : Ms W F…

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: [2008] WASC 36 (S)
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia presided over the case of O'Rourke v P & B Corporation Pty Ltd, in which the plaintiffs sought to challenge a decision related to the sale of land and the subsequent costs associated with the litigation. The court was tasked with deciding the appropriate allocation of costs between the parties, including whether indemnity costs should be awarded and whether certain specific costs orders should be granted. The primary legal issue was whether the plaintiffs should be held responsible for the defendants' costs of the action and, if so, whether those costs should be assessed on an indemnity basis or if specific cost orders should be made. The court considered the defendants' application for indemnity costs, which are awarded only in exceptional circumstances, typically when the conduct of the losing party warrants admonishment. The defendants argued that the plaintiffs' conduct warranted such costs due to various pre-trial actions and deficiencies in their case. However, the court found that while the plaintiffs' actions were not ideal, they did not rise to the level of exceptional circumstances necessary for an indemnity costs order.

The court also addressed the defendants' request for specific costs orders, including lifting the limits on certain items of the Scale of Costs and adjusting the hourly rates for legal practitioners. The court found that the case was unusually difficult, complex, and important, justifying the lifting of certain cost limits. However, the court declined to increase the hourly rate for counsel beyond the statutory maximum, instead leaving the final determination of the appropriate rate to the taxing officer. The court made several specific orders, including allowing certain costs related to conferences and mediation, removing certain cost limits, and adjusting the rate for counsel's work. Ultimately, the court ordered that the plaintiffs pay the defendants' costs of the action, subject to certain conditions regarding the taxation of those costs.

Orders