PESTKOWSKI v Coniglio

[2000] WASC 85

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PESTKOWSKI & ANOR -v- CONIGLIO & ANOR [2000] WASC 85

CORAM:   MASTER BREDMEYER

HEARD:   29 MARCH 2000

DELIVERED          :   31 MARCH 2000

FILE NO/S:   CIV 1866 of 1995

BETWEEN:   STANISLAW PESTKOWSKI

ANNA PESTKOWSKI
Plaintiffs

AND

BENITO FRANCESCO CONIGLIO
First Defendant

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Practice and procedure - Order made per incuriam - Order revoked

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiffs:     Mr L A Margaretic

First Defendant             :     Mr S C England

Second Defendant         :     No appearance

Solicitors:

Plaintiffs:     Margaretic Morton

First Defendant             :     Lawton Gillon

Second Defendant         :     No appearance

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

Nil

Case(s) also cited:

Nil

1. MASTER BREDMEYER:  The plaintiffs have applied by way of chamber summons for me to revoke order 6 made by me herein on 29 March 1999.  That order reads:

   "6.The plaintiffs must forthwith pay [to] the first defendant the sum of $3656.50 and this action be stayed until the plaintiffs pay that sum to the first defendant."

2. The sum has not been paid.  The plaintiffs say that the order was given in ignorance of two relevant facts, viz that the Water Authority's charge to approve the subdivision was $3372 and not $4002, and that it had been paid by the plaintiffs and not the defendant.  The payment of $4002 by the defendant was a duplicate voluntary payment made by mistake.  By way of background, Walsh J made some orders dissolving an injunction herein on 29 November 1996 and his order 5 reads:

   "5.The First Defendant, at the cost of the Plaintiffs and the First Defendant in equal shares, promptly proceed to subdivide or strata title the property."

3. Those costs as set out in Mr Coniglio's affidavit of 18 March 1999 are as follows:

   Water Authority  $4002

   Crossland & Hardy, Surveyors  $2000

   R & A Berardini fencing  $1311

   Total  $7313

4. I ordered the plaintiffs to pay to the first defendant $3656.50, which is, half of $7313.

5. I consider that my order was made per incurium.  The Water Authority required a capital contribution of $3372 before it would approve the subdivision and that sum was paid by the plaintiffs on 21 September 1994.  In ignorance of that payment, the defendant also paid $4002 to the Water Authority for the same purpose on 19 October 1998.  Since my order of March 1999, the mistake has been pointed out to the Water Authority and it is willing to refund the latter payment to the defendant.  The Water Authority's charge increased from $3372 in September 1994 to $4002 in October 1998, but it is prepared to stand by the former payment and does not require any extra money.  It matters not, in my view, that the $3372 to the Water Authority was paid by the plaintiffs in 1994 before order 5 of Walsh J's orders of 29 November 1996 quoted above.  I say that because I consider his order covers proper subdivisional costs, whether they were incurred or paid before or after the date of his order.

6. The plaintiffs are required to pay half the total of the costs enumerated above, omitting the Water Authority charge.  The surveying and fencing costs come to $3311.  The plaintiffs are required to pay to the defendant half of that, which equals $1655.50.  The defendant is required to pay to the plaintiffs half of the Water Authority charge paid by them.  Half of $3372 comes to $1686.  I set out the figures in tabular form:

   Plaintiffs to pay defendant                   $3311 divided by 2 =      $1655.50

   Defendant to pay plaintiffs                  $3372 divided by 2 =      $1686.00

   Balance payable by defendant to plaintiffs  $   30.50

7. I am not going to make an order that the defendant pay the plaintiffs $30.50.  It is a small sum which can be taken into account at the trial.

8. I will revoke order 6 made by me on 6 March 1999.  I consider costs should follow the event.  It is a matter which was put fairly to the defendant prior to the application but not conceded.  I think it should have been.

9. I have heard brief argument on two other matters and I will make orders on them viz:

10. (1)      Plaintiffs to file and serve any request for particulars of defence within seven days and defendant to answer request within seven days of receipt of the same, and

11. (2)      Defendant to give discovery within 14 days hereof.