Price v David Gray & Co Pty Ltd (ACN 008 671 127)
[2021] WASCA 109
•18 JUNE 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PRICE -v- DAVID GRAY & CO PTY LTD (ACN 008 671 127) [2021] WASCA 109
CORAM: BUSS P
MURPHY JA
HEARD: 18 JUNE 2021
DELIVERED : 18 JUNE 2021
FILE NO/S: CACV 22 of 2021
BETWEEN: STUART BARRY PRICE
First Appellant
SP HAY PTY LTD (ACN 093 703 765)
Second Appellant
AND
DAVID GRAY & CO PTY LTD (ACN 008 671 127)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
File Number : CIV 2581 of 2019
Catchwords:
Civil appeal - Practice and procedure - Failure by the appellants to file and serve the appellants' case - Springing order
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(2)(b)
Result:
Springing order made in relation to the filing and serving of the appellants' case
Category: B
Representation:
Counsel:
| First Appellant | : | No Appearance |
| Second Appellant | : | No Appearance |
| Respondent | : | Mr P J Ward |
Solicitors:
| First Appellant | : | In person |
| Second Appellant | : | In person |
| Respondent | : | Nova Legal |
Case(s) referred to in decision(s):
Nil
JUDGMENT OF THE COURT:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
On 7 April 2021, the appellants filed an appeal notice in respect of orders made by Master Sanderson on 8 March 2021 in the General Division of the Supreme Court.
The Master entered judgment for the respondent as plaintiff on its claim and dismissed a counterclaim made by the appellants as defendants.
The appellants' appeal notice was filed out of time. The last date for filing the appeal notice was 29 March 2021.
Pursuant to r 32(2)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules), each of the appellants was required to file and serve an appellant's case by 12 May 2021. Each of the appellants failed to comply with that requirement.
On 14 May 2021, Mitchell JA ordered that the time for the appellants to file and serve their appellants' case be extended to 4.00 pm on 28 May 2021. Each of the appellants failed to file an appellant's case within that extended time.
The appellants remain in default. Neither of them has filed an appellant's case.
By an amended registrar's notice to attend dated 14 June 2021, the appeal was called on for hearing today to consider the appellants' application for an extension of time within which to appeal and the respondent's application in an appeal filed 13 May 2021 for orders that the appellants provide security for the costs of the appeal.
By letter dated 17 June 2021 from the Court of Appeal Registrar, the parties were informed that the court's preliminary view was that, at the hearing today, consideration should be given, at the outset, to whether the appellants should be granted a further extension of time to file and serve the appellants' case and, if so, the length of the further extension and whether a springing order should be made.
The court had formed that preliminary view because the appellants' application for an extension of time to appeal and the respondent's application for security for costs depend in part on the apparent merits of the appeal.
After hearing submissions from counsel for the respondent today, in circumstances where neither of the appellants has appeared today, either by counsel or in person, the court is satisfied that it is appropriate to grant each of the appellants a short further extension of time to file and serve an appellant's case, but, in addition, to make an order to the effect that if an appellant does not file and serve an appellant's case within the further extended time, that appellant's appeal will automatically be dismissed.
The making of the springing order is justified by the appellants' continuing failure to file an appellants' case, as required by the Court of Appeal Rules and the order of Mitchell JA, and by the absence of any adequate explanation for that failure.
In those circumstances, it is appropriate to adjourn the appellants' application for an extension of time to appeal and the respondent's application for security for costs to a date after the short further extension of time we propose to allow for the filing and serving of an appellants' case.
The court makes orders as follows:
(1)The time for the first appellant to file and serve an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) is extended to 4.00 pm on 5 July 2021.
(2)Unless by 4.00 pm on 5 July 2021 the first appellant files and serves an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) the first appellant's appeal is dismissed.
(3)The time for the second appellant to file and serve an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) is extended to 4.00 pm on 5 July 2021.
(4)Unless by 4.00 pm on 5 July 2021 the second appellant files and serves an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) the second appellant's appeal is dismissed.
(5)The costs of the respondent in connection with its attendance at the hearing on 18 June 2021 are reserved.
(6)If the appeal by the first appellant or the second appellant or the appeal by the first appellant and the second appellant is dismissed pursuant to these orders, the respondent has liberty to apply in relation to the costs of the appeal.
(7)The appellants' application for an extension of time to appeal and the respondent's application in an appeal filed 13 May 2021 are adjourned to a date to be fixed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
23 JUNE 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PRICE -v- DAVID GRAY & CO PTY LTD (ACN 008 671 127) [2021] WASCA 109 (S)
CORAM: BUSS P
MURPHY JA
HEARD: ON THE PAPERS
DELIVERED : 17 SEPTEMBER 2021
FILE NO/S: CACV 22 of 2021
BETWEEN: STUART BARRY PRICE
First Appellant
SP HAY PTY LTD (ACN 093 703 765)
Second Appellant
AND
DAVID GRAY & CO PTY LTD (ACN 008 671 127)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: DAVID GRAY & CO PTY LTD -v- SP HAY PTY LTD [No 2] [2021] WASC 114
File Number : CIV 2581 of 2019
Catchwords:
Civil appeal - Practice and procedure - Costs
Legislation:
Nil
Result:
Indemnity costs order made
Category: B
Representation:
Counsel:
| First Appellant | : | No appearance |
| Second Appellant | : | No appearance |
| Respondent | : | No appearance |
Solicitors:
| First Appellant | : | In person |
| Second Appellant | : | In person |
| Respondent | : | Nova Legal |
Case(s) referred to in decision(s):
Ben-Pelech v Royle [2020] WASCA 168 (S)
Huntingdale Village Pty Ltd v Korda [2015] WASCA 101 (S)
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Yara Australia Pty Ltd v Oswal [2012] WASCA 264
JUDGMENT OF THE COURT:
On 7 April 2021, the appellants filed an appeal notice in respect of orders made by Master Sanderson on 8 March 2021 in the General Division of the Supreme Court.
The Master entered judgment for the respondent as plaintiff on its claim and dismissed a counterclaim made by the appellants as defendants.
The respondent's claim was against the second appellant as principal debtor and the first appellant as guarantor in relation to agricultural products which the respondent supplied on credit to the second appellant. The agricultural products were supplied pursuant to a written agreement between the respondent and the second appellant dated 3 February 2017 (the Agreement). The first appellant's guarantee was contained in a deed of guarantee, indemnity and charge dated 3 February 2017 (the Deed).
The Master ordered that the appellants pay the respondent's costs 'of and incidental to this proceeding on a full indemnity basis'. The Master said in his reasons [36]:
As to costs, [the respondent] sought and obtained an order [that the appellants] pay [the respondent's] costs on a full indemnity basis. I need not say anything more about that issue. Having recited the unhappy history of this matter, it is abundantly clear an indemnity costs order was appropriate.
The appellants' appeal notice was filed out of time. The last date for filing the appeal notice was 29 March 2021.
Pursuant to r 32(2)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA), each of the appellants was required to file and serve an appellant's case by 12 May 2021. Each of the appellants failed to comply with that requirement.
On 14 May 2021, Mitchell JA ordered that the time for the appellants to file and serve their appellants' case be extended to 4.00 pm on 28 May 2021. Each of the appellants failed to file an appellant's case within that extended time.
As at 18 June 2021, the appellants remained in default. Neither of them had filed an appellant's case.
The appeal was called on for hearing before us on 18 June 2021 to consider whether it was appropriate to grant each of the appellants a short further extension of time to file and serve an appellant's case. The appellants did not appear at the hearing.
On 18 June 2021, we made orders as follows:
(1)The time for the first appellant to file and serve an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) is extended to 4.00 pm on 5 July 2021.
(2)Unless by 4.00 pm on 5 July 2021 the first appellant files and serves an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) the first appellant's appeal is dismissed.
(3)The time for the second appellant to file and serve an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) is extended to 4.00 pm on 5 July 2021.
(4)Unless by 4.00 pm on 5 July 2021 the second appellant files and serves an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) the second appellant's appeal is dismissed.
(5)The costs of the respondent in connection with its attendance at the hearing on 18 June 2021 are reserved.
(6)If the appeal by the first appellant or the second appellant or the appeal by the first appellant and the second appellant is dismissed pursuant to these orders, the respondent has liberty to apply in relation to the costs of the appeal.
(7)The appellants' application for an extension of time to appeal and the respondent's application in an appeal filed 13 May 2021 are adjourned to a date to be fixed.
Neither the first appellant nor the second appellant filed an appellant's case by 4.00 pm on 5 July 2021 which complied with the Supreme Court (Court of Appeal) Rules. Consequently, the first appellant's appeal and the second appellant's appeal were dismissed.
On 15 July 2021, the respondent informed the court that it sought the costs of the appeal.
On 19 July 2021, the Court of Appeal Registrar made orders, relevantly and in effect, as follows:
(a)by 26 July 2021, the respondent is to file and serve written submissions in support of its application for costs;
(b)by 2 August 2021, the first appellant and the second appellant are to file and serve any written submissions in response; and
(c)the issue of costs be determined by the court on the papers.
On 27 July 2021, the respondent filed and served written submissions in support of an order that the first appellant and the second appellant pay the respondent's costs of the appeal 'on a full indemnity basis', to be assessed if not agreed.
Neither the first appellant nor the second appellant has filed any written submissions in response.
In its written submissions, the respondent contended that the respondent should be awarded costs 'on a full indemnity basis' on two grounds. First, an award of costs on that basis was warranted on the merits of the case. Secondly, the respondent had a contractual right to indemnity costs against the first appellant pursuant to cl 3.2 of the Deed and a contractual right to indemnity costs against the second appellant pursuant to cl 10.2 of the Agreement.
The principles relevant to the awarding of costs on an indemnity basis are well established. They were outlined in Swansdale Pty Ltd v Whitcrest Pty Ltd,[1] Yara Australia Pty Ltd v Oswal[2] and Huntingdale Village Pty Ltd v Korda.[3] See also Ben-Pelech v Royle.[4]
[1] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10].
[2] Yara Australia Pty Ltd v Oswal [2012] WASCA 264 [33].
[3] Huntingdale Village Pty Ltd v Korda [2015] WASCA 101 (S) [11] ‑ [17].
[4] Ben-Pelech v Royle [2020] WASCA 168 (S) [7].
In the present case, we are satisfied that it is appropriate to make an order that the first appellant and the second appellant pay the respondent's costs of the appeal, on an indemnity basis, to mark the court's disapproval of the appellants' unreasonable conduct in failing repeatedly to file an appellants' case. In particular, the appellants failed to file and serve an appellants' case within the time required under the rules of court. Next, the appellants failed to file and serve an appellants' case within the extended time permitted by Mitchell JA's order. The appellants then failed to file and serve an appellants' case within the further extended time allowed by us on 18 June 2021. Neither the first appellant nor the second appellant has provided an adequate explanation for their failures.
In the circumstances, we will order that:
(1)the first appellant and the second appellant pay the respondent's costs of the appeal, including any reserved costs, except insofar as those costs are of an unreasonable amount or have been unreasonably incurred so that, subject to those exceptions, the respondent will be wholly indemnified by the first appellant and the second appellant for its costs; and
(2)the amount of the costs payable pursuant to this order is to be assessed if not agreed.
The exceptions in relation to costs that are of an unreasonable amount and costs that have been unreasonably incurred are appropriate qualifications that are ordinarily included in any order made by a court for the payment of costs on an indemnity basis.
It is unnecessary to consider whether cl 10.2 of the Agreement or cl 3.2 of the Guarantee entitles the respondent to recover its costs of the appeal on an indemnity basis. It is sufficient to observe that if those provisions do entitle the respondent to recover its costs on an indemnity basis, the provisions do not entitle the respondent to recover costs that are of an unreasonable amount or costs that have been unreasonably incurred.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
17 SEPTEMBER 2021
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