Pioneer Concrete (WA) Pty Ltd v Panel Tank Technologies (Australia) Pty Ltd
[2007] WADC 192
•2 NOVEMBER 2007
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM |
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| HEARD | : NOT APPLICABLE | ||
| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
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AND
PANEL TANK TECHNOLOGIES (AUSTRALIA)
PTY LTD (ACN 0090404 040)First Defendant
KEVIN ALAN BLACK
Second Defendant
Catchwords:
Costs - Taxation - Objection to unspecified determinations - Sufficiency of objection
Legislation:
Nil
[2007] WADC 192
Result:
Objection not sustained
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Mercia Pestell Hillard |
| First Defendant | : | Lynn & Brown Lawyers |
| Second Defendant | : | Fiocco Hopkins Nash |
Case(s) referred to in judgment(s):
Nil
[2007] WADC 192
DEPUTY REGISTRAR HARMAN
DEPUTY REGISTRAR HARMAN: Judgment on the plaintiff's claim and defendants' counterclaim was entered on 18 February 2005. On 19 August 2005 the plaintiff obtained an order for costs against the second defendant as follows:
"1. the second-named defendant do pay the plaintiff's costs of its claim against the defendants, including any reserved costs to be taxed.
2. the second-named defendant do pay the costs of the plaintiff's witnesses, including the costs of and incidental to the preparation of the expert report of Mr Robert Pritchard dated June 2004 and the costs of his attendance at the trial.
3. there be a certificate for the costs of the transcript."
2 The second defendant has objected to unspecified determinations
made upon the taxation of the plaintiff's costs. Paragraph 1 of its notice of
objection is as follows:"Taxation of the bill has proceeded on the basis that the second
defendant … is liable for:
(a) the plaintiff's costs of its claim; (b) the plaintiff's costs of the counterclaim insofar as it does not relate to the damage to the form work. The counterclaim was not the second defendant's claim but that of the first defendant. Objection is made to the amounts allowed in respect of the bill on a global basis."
The second defendant concludes that paragraph with the submission:
"… pursuant to the terms of the draft judgment and orders of 19 August 2005, the costs of the plaintiff on the counterclaim should be against the first defendant only."
4 The term "draft judgment" appears as a heading on the transcript of
reasons for decision of 19 August 2005. The second defendant does not suggest that there is any conflict between the order of 19 August 2005 and the relevant parts of the transcript.
5 I have no difficulty with the contention that the counterclaim was
brought by the first defendant. According to the pleading that clearly was
[2007] WADC 192
DEPUTY REGISTRAR HARMAN
the case. That said both the judgment and the reasons for judgment would reveal that it was brought by the defendants. Be that as it may, taxation of the plaintiff's bill was under the order of 19 August 2005 and it makes no reference to the costs of the counterclaim.
6 The plaintiff's claim against the first defendant was for the cost of
material supplied and against the second defendant under his guarantee of the indebtedness of the first defendant to the plaintiff. The pleading of those claims ran to 6 paragraphs. The defence of the defendants ran to 42 paragraphs. Over the course of that pleading the first defendant denied both the supply of material and breach of agreement. It alleged a series of agreements, particular terms of those agreements, breach of those terms, the existence of a duty of care and the plaintiff's breaches. It concluded as follows:
"41. By reason of the matters pleaded above the First Defendant denies that the Plaintiff is entitled to the relief claimed or to any relief.
42. Further or in the alternative to paragraph 41 herein, if … there is or is found to be due any sum from the Second Defendant to the Plaintiff, the First Defendant will seek to set off so much of the counterclaim herein, as will be sufficient to extinguish such claim."(sic)
7 I interpreted par 1 of the order for costs as providing for recovery of
the cost of each of the plaintiff's claims. I considered that in the context of the case revealed on the pleadings the proper impact of par 1 was that the plaintiff was entitled to its costs of overcoming the contests founded upon the allegations raised in the defence.
8 Whilst I accept that the result of taxation is amenable to the
characterisation proposed by the second defendant I am satisfied that the process of taxation accorded with the order. I might add that my assessment of par 2 and par 3 of the order is that they are consistent with the impact that I accorded to par 1.
Paragraph 2 of the objection is as follows:
"The terms of the guarantee provided by the second defendant for the first defendant's obligations do not extend to the obligation to pay costs of the plaintiff and are limited to the recovery of the cost of goods supplied by the plaintiff. The terms of the guarantee do not support an interpretation of
[2007] WADC 192
DEPUTY REGISTRAR HARMAN
the draft judgment that would result in a liability for the plaintiff's costs of defending the first defendant's counter claim."
It also concludes with a submission:
"The second defendant submits that it should not be held to be liable for meeting the extent of costs determined by the taxing officer, but rather only the costs of the plaintiff's claim for goods delivered but not paid for."
10 In my opinion the content of that part of the objection is wide of the
mark; the taxation proceeded under the order, not the indemnity. I would add that as was the case with par 1, the objection would fail to engage the jurisdiction provided by O 66 r 53 (1) as it neither specifies any determination the subject of objection nor articulates any error.
Paragraph 3 of the objection is as follows:
"Further and in the alternative, the 'costs of the plaintiff's claim' as specified in the extracted orders should be interpreted as limiting the getting up and costs of the hearing to the extent that the plaintiff was required to prove delivery of concrete."
In my opinion the content of that paragraph is no more than a submission; otherwise I have nothing to add.
The last paragraph is as follows:
"The taxing officer has allowed the costs of travel and accommodation of the witness Maldon, whereas in the judgment of Her Honour Judge O'Brien dated 19 August 2005 on the question of costs, Her Honour specifically excluded those costs in her reasons when making an order for the plaintiff's witness costs (page 6). The second defendant objects to the allowance for the witness Maldon's travelling and accommodation costs on that basis."
As is the case with each other paragraph of the objection, par 4 is flawed as an objection for the purposes of r 53 (1) as it asserts no error.
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