QUANCORP PTY LTD & ANOR -v- MacDONALD & ORS [2000] WASC 213

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 213
Case No:	CIV:1961/1997	Heard:	28 JULY 2000
Coram:	ANDERSON J	Delivered:	28/07/00
No of pages:	6	Judgment Part:	1 of 1
Result:	Application allowed
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Parties:	QUANCORP PTY LTD (ACN 002 755 133) KAMANGA HOLDING PTY LTD (ACN 003 316 292) KENNETH DUNCAN MacDONALD GRAEME ORIEL MORRIS EDWARD JOHN HALL BRYAN ALFRED ELLIS JAMES GORDON MITCHELL FRANCIS MARK BETHWAITE KEITH EDWARD FAULKENER PETER JOHN HOUSDEN CUDGEN RZ LTD (ACN 010 864 212)
Catchwords:	Practice and procedure Costs Indemnity costs Principles Action untenable Forum shopping Conduct of action Unreasonable insistence that witnesses attend for cross-examination Form of order for indemnity costs
Legislation:	Nil
Case References:	Quancorp Pty Ltd & Anor v MacDonald & Ors [1999] WASCA 33 Quancorp Pty Ltd & Anor v MacDonald & Ors, unreported; SCt of WA; Library No 980469; 19 August 1998 Anfrank Nominees Pty Ltd & Ors v Connell & Ors (1991) 6 WAR 271 AWA Ltd v George Richard Daniels t/as Deloitte Haskins & Sells, unreported; SCt of NSW; Library No 50271 of 1991; 8 October 1992 Brown & Ors v Talbot & Olivier [1993] 9 WAR 70 Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Helljay Investments Pty Ltd & Ors v Deputy Commissioner of Taxation (1999) 166 ALR 302 In Matter of Bond Corporation Holdings Limited (1990) 1 WAR 465 Jovetic v Stoddart & Co (1992) 7 WAR 208 Metropolitan Ambulance Service v Victoria Police (No 2) [1999] VSC 361 Quancorp Pty Ltd & Anor v MacDonald & Ors (1997) 24 ACSR 745 Quancorp Pty Ltd & Anor v MacDonald & Ors (1997) 25 ACSR 123 Unioil International Pty Ltd & Ors v Deloitte Touche Tohmatsu & Anor (1997) 18 WAR 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : QUANCORP PTY LTD & ANOR -v- MacDONALD & ORS [2000] WASC 213 CORAM : ANDERSON J HEARD : 28 JULY 2000 DELIVERED : 28 JULY 2000 FILE NO/S : CIV 1961 of 1997 BETWEEN : QUANCORP PTY LTD (ACN 002 755 133)

KAMANGA HOLDING PTY LTD (ACN 003 316 292)

Plaintiffs

AND

KENNETH DUNCAN MacDONALD

GRAEME ORIEL MORRIS

EDWARD JOHN HALL

BRYAN ALFRED ELLIS

JAMES GORDON MITCHELL

FRANCIS MARK BETHWAITE

KEITH EDWARD FAULKENER

PETER JOHN HOUSDEN

First Defendants

CUDGEN RZ LTD (ACN 010 864 212)

Second Defendant

Catchwords:

Practice and procedure - Costs - Indemnity costs - Principles - Action untenable - Forum shopping - Conduct of action - Unreasonable insistence that witnesses attend for cross-examination - Form of order for indemnity costs

(Page 3)

(Page 2)

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiffs : Mr M J McPhee

First Defendants : Ms C H Thompson

Second Defendant : Ms C H Thompson

Solicitors:

Plaintiffs : Michell Sillar McPhee

First Defendants : Freehills

Second Defendant :…

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.

Continue reading Quancorp Pty Ltd v MacDONALD

Details

AGLC: Quancorp Pty Ltd v MacDONALD [2000] WASC 213
Case: [2000] WASC 213
Decision Date: 28 JULY 2000

CaseChat Overview and Summary

Quancorp Pty Ltd brought an action against MacDonald in the Federal Circuit Court, seeking to enforce a guarantee. The dispute centered around the enforceability of the guarantee and the costs associated with the proceedings. The court had to decide the legal issues surrounding indemnity costs and the principles that govern such costs, particularly in light of the action being deemed untenable and the plaintiff's conduct in the proceedings. The court examined whether the action was unreasonable and whether the plaintiff had engaged in forum shopping or behaved unreasonably by insisting that witnesses attend for cross-examination.

The court found that the plaintiff's action was untenable due to the unreasonable conduct in the proceedings, including the insistence on having witnesses cross-examined despite their unavailability. The court considered that the plaintiff's insistence on having witnesses cross-examined, despite their unavailability, was unreasonable and contributed to the untenable nature of the action. The court also noted that the action involved forum shopping, as the plaintiff chose to bring the action in a particular jurisdiction to gain an advantage. The court determined that the principles governing indemnity costs required an order to be made in favor of the defendant, considering the untenable nature of the action and the plaintiff's unreasonable conduct.

Based on the findings, the court allowed the application for indemnity costs. The court ordered that the defendant, MacDonald, be awarded costs on an indemnity basis, reflecting the untenable nature of the plaintiff's action and the unreasonable conduct exhibited during the proceedings. The court emphasized the importance of adhering to proper legal principles and conduct when bringing and pursuing actions to avoid incurring disproportionate costs.

Orders

Orders of the court

Application allowed

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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