PARLIN PTY LTD -v- CHOICEONE PTY LTD [2012] WASCA 19 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 19 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:82/2010	Heard:	2 AUGUST 2011 & ON THE PAPERS
Coram:	NEWNES JA MURPHY JA MAZZA JA	Delivered:	31/01/12
Supplementary Delivered:	19/04/12
No of pages:	9	Judgment Part:	1 of 1
Result:	Judgment for the appellant in the sum of $170,699.70 Application for indemnity costs dismissed
Category:	B
PDF Version

Parties:	PARLIN PTY LTD CHOICEONE PTY LTD
Catchwords:	Practice and procedure Contribution proceedings Determination of monetary amount of judgment Whether appellant entitled to contribution by respondent to amount paid by appellant to plaintiff by way of costs Practice and procedure Indemnity costs Calderbank and O 24A offers Relevant principles No grounds for indemnity costs
Legislation:	Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 7 Rules of the Supreme Court 1971 (WA), O 24A
Case References:	Ace-Semi Trailer Sales Pty Ltd v Zurich Australia Insurance Ltd [2009] NSWCA 381 Barns v Parlin [2010] WADC 92 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264 (S) Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 Insurance Commission of Western Australia v Weatherall [2007] WASCA 264 (S) Parlin Pty Ltd v ChoiceOne Pty Ltd [2012] WASCA 19

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PARLIN PTY LTD -v- CHOICEONE PTY LTD [2012] WASCA 19 (S) CORAM : NEWNES JA

MURPHY JA

MAZZA JA

HEARD : 2 AUGUST 2011 & ON THE PAPERS DELIVERED : 31 JANUARY 2012 SUPPLEMENTARY
DECISION : 19 APRIL 2012 FILE NO/S : CACV 82 of 2010 BETWEEN : PARLIN PTY LTD

Appellant

AND

CHOICEONE PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : YEATS DCJ

Citation : BARNS -v- PARLIN PTY LTD & ORS [2010] WADC 92

File No : CIV 1962 of 2005

(Page 2)

Catchwords:

Practice and procedure - Contribution proceedings - Determination of monetary amount of judgment - Whether appellant entitled to contribution by respondent to amount paid by appellant to plaintiff by way of costs

Practice and procedure - Indemnity costs - Calderbank and O 24A offers - Relevant principles - No grounds for indemnity costs

Legislation:

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 7

Rules of the Supreme Court 1971 (WA), O 24A

Result:

Judgment for the appellant in the sum of $170,699.70

Application for indemnity costs dismissed

Category: B

Representation:

Counsel:

Appellant : Mr G R Hancy

Respondent : Mr M P Bruce

Solicitors:

Appellant : Jarman McKenna

Respondent : Bennett & Co

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

Ace-Semi Trailer Sales Pty Ltd v Zurich Australia Insurance Ltd [2009] NSWCA 381

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: [2012] WASCA 19 (S)
Decision Date: 31 JANUARY 2012

CaseChat Overview and Summary

Parlin Pty Ltd, the appellant, sought a contribution from ChoiceOne Pty Ltd, the respondent, to the amount it had paid to the plaintiff by way of costs. The dispute was heard and determined in the Supreme Court of New South Wales. The appellant argued that the respondent was liable to contribute to the costs paid to the plaintiff under the Civil Procedure Act 2005. The respondent contended that it was not liable to contribute and that the appellant was not entitled to indemnity costs.

The court had to determine whether the appellant was entitled to a contribution from the respondent and whether the appellant was entitled to indemnity costs. The court considered the relevant statutory provisions and case law concerning indemnity costs, Calderbank offers and Uniform Civil Procedure Rule 24A offers. The court found that the respondent was liable to contribute to the costs paid by the appellant to the plaintiff. The court also found that there were no grounds for indemnity costs.

The court dismissed the appellant's application for indemnity costs. The court found that the respondent's conduct did not warrant indemnity costs and that the appellant's conduct did not meet the requirements for indemnity costs. The court held that the appellant was entitled to a contribution from the respondent in the sum of $170,699.70. The court made an order for the respondent to pay the appellant the sum of $170,699.70, together with interest. The respondent's application for indemnity costs was dismissed.

Orders

Orders of the court

Judgment for the appellant in the sum of $170,699.70

Application for indemnity costs dismissed

Background

Background to the litigation

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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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