Pacific Industrial Co (WA) Pty Ltd v Outotec Pty Ltd [No 2]

[2009] WASC 32

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PACIFIC INDUSTRIAL CO (WA) PTY LTD -v- OUTOTEC PTY LTD [No 2] [2009] WASC 32

CORAM:   TEMPLEMAN J

HEARD:   ON THE PAPERS

DELIVERED          :   18 FEBRUARY 2009

FILE NO/S:   CIV 2044 of 2007

BETWEEN:   PACIFIC INDUSTRIAL CO (WA) PTY LTD (ACN 008 895 154)

Plaintiff

AND

OUTOTEC PTY LTD (formerly OUTOKUMPU TECHNOLOGY PTY LTD) (ABN 7400 3491 165)
Defendant

Catchwords:

Costs - Application partly successful - Reality that application unnecessary - Costs fixed

Legislation:

Nil

Result:

Defendant pay plaintiff's costs forthwith, fixed at $1,500

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance

Defendant:     No appearance

Solicitors:

Plaintiff:     Tottle Partners

Defendant:     DLA Phillips Fox

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

MacMahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271

Pacific Industrial Co (WA) Pty Ltd v Outotec Pty Ltd [2008] WASC 308

Permanent Building Society v Wheeler [No 2] (1992) 10 WAR 569

1. TEMPLEMAN J:  On 23 December 2008 I published my reasons for dismissing the defendant's application to strike out portions of the statement of claim:  Pacific Industrial Co (WA) Pty Ltd v Outotec Pty Ltd [2008] WASC 308.

2. Although I had intended to deal with the costs of the application at a directions hearing, the parties agreed the directions.  The hearing therefore became unnecessary.  As the parties have exchanged submissions in relation to costs, it is convenient to deal with that matter on the papers. 

The costs of the application

1. The plaintiff submits that because the application was largely unsuccessful, it should have its costs; either in any event or as plaintiff's costs in the cause.

2. The defendant submits that it should have its costs relating to those parts of the application in which it succeeded, but that otherwise there should be no order as to costs.  This is on the basis that the exchange of submissions which led to the narrowing of issues were (as I said in my reasons at par 51), in substance, an extension of the conferral process.

3. However, the issues which fell away, although important, involved only short points.  It has now emerged that the plaintiff ought to have sued as a trustee.  Clearly, the statement of claim will require amendment.  Equally clearly, the plaintiff would have to plead the factual basis for an election, and narrow the ambit of a claim said to be based on 'but not limited to' delaying the provision of access to work areas.

4. Although successful in relation to those issues, the defendant's application was directed mainly to striking out substantial parts of the statement of claim on the basis that they disclose no reasonable cause of action. 

5. Before preparing submissions in response to the application, the plaintiff's solicitors sent an email to the defendant's solicitors referring to my judgment in MacMahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271 and inviting their client to withdraw its application before the plaintiff incurred costs of preparing submissions in opposition.

6. The plaintiff's solicitors said that their client would rely on the email on the question of the costs of the application if the defendant chose to proceed. 

7. The defendant did proceed:  but for reasons given previously, was largely unsuccessful.

8. In all the circumstances, I do not think it appropriate to separate the issues, given that the court 'will always look at the realities of the case and attempt to do substantial justice':  Permanent Building Society v Wheeler [No 2] (1992) 10 WAR 569, 574 (Anderson J).

9. In my view, the reality is that this application was unnecessary.  That being so, I consider that the defendant should pay the plaintiff's costs.  I fix the costs at $1,500, on the basis of item 1.7 of Consolidated Practice Direction 4.7.1.1 (bearing in mind that there was no hearing).  The costs should be paid forthwith.