Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder [No 2]
[2016] WASC 179
•17 JUNE 2016
RAMONT HOLDINGS PTY LTD -v- CITY OF KALGOORLIE-BOULDER [No 2] [2016] WASC 179
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 179 | |
| Case No: | CIV:2507/2014 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 17/06/16 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Action discontinued No orders as to costs as between plaintiffs and second and third defendants | ||
| B | |||
| PDF Version |
| Parties: | RAMONT HOLDINGS PTY LTD D J SHAVE PTY LTD SHAVE HOLDINGS PTY LTD CITY OF KALGOORLIE-BOULDER CHRISTOPHER HUGH FYSON VIER PTY LTD MELCOVE PTY LTD |
Catchwords: | Practice and procedure Discontinuance of litigation by plaintiffs Leave request Supervening events Litigation rendered 'nugatory' Costs of defendants Development approval lapses and not extended Nothing to litigate about |
Legislation: | Nil |
Case References: | ACN 116 149 092 Pty Ltd v Coopers Brewery Ltd [2006] FCA 1119 Chapman v Luminis Pty Ltd [2003] FCAFC 162 McClure v The Mayor and Councillors of the City of Stirling [No 3] [2009] WASC 247 Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder [2015] WASC 456 Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Re Western Australian Planning Commission; Ex parte Solomon [2010] WASCA 236 (S) Rigging West Pty Ltd v Stanick Pty Ltd [2013] WASC 185 Rodgers v De Mol Investments Pty Ltd [No 2] [2016] WASC 151 Walter v Buckeridge [No 4] [2011] WASC 313 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
D J SHAVE PTY LTD
Second Plaintiff
SHAVE HOLDINGS PTY LTD
Third Plaintiff
AND
CITY OF KALGOORLIE-BOULDER
First Defendant
CHRISTOPHER HUGH FYSON
Second Defendant
VIER PTY LTD
MELCOVE PTY LTD
Third Defendants
Catchwords:
Practice and procedure - Discontinuance of litigation by plaintiffs - Leave request - Supervening events - Litigation rendered 'nugatory' - Costs of defendants - Development approval lapses and not extended - Nothing to litigate about
Legislation:
Nil
Result:
Action discontinued
No orders as to costs as between plaintiffs and second and third defendants
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
Third Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendants : No appearance
Solicitors:
First Plaintiff : Hotchkin Hanly Lawyers
Second Plaintiff : Hotchkin Hanly Lawyers
Third Plaintiff : Hotchkin Hanly Lawyers
First Defendant : McLeods Barristers & Solicitors
Second Defendant : Kitto & Kitto Barristers & Solicitors
Third Defendants : Kitto & Kitto Barristers & Solicitors
Case(s) referred to in judgment(s):
ACN 116 149 092 Pty Ltd v Coopers Brewery Ltd [2006] FCA 1119
Chapman v Luminis Pty Ltd [2003] FCAFC 162
McClure v The Mayor and Councillors of the City of Stirling [No 3] [2009] WASC 247
Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder [2015] WASC 456
Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Re Western Australian Planning Commission; Ex parte Solomon [2010] WASCA 236 (S)
Rigging West Pty Ltd v Stanick Pty Ltd [2013] WASC 185
Rodgers v De Mol Investments Pty Ltd [No 2] [2016] WASC 151
Walter v Buckeridge [No 4] [2011] WASC 313
1 KENNETH MARTIN J: These reasons are concerned with the basis upon which this litigation should end as between the plaintiffs and the second and third defendants and, in particular, as to what dispositive costs orders look to follow. The action as between the plaintiffs and the first defendant has already terminated. That transpired under a memorandum of consent orders between those parties which I approved on 1 March 2016. At that time, the following consent orders issued, namely:
1. the plaintiffs claim against the first defendant be dismissed; and
2. that there be no order as to costs as between the plaintiffs and the first defendant and that all existing undischarged costs orders between the plaintiffs and the first defendant were vacated.
2 That dismissal order as between the plaintiffs and the first defendant issued subsequent to my reserved reasons for decision in Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder [2015] WASC 456, delivered 1 December 2015. Those reserved reasons had considered the application of the first defendant seeking a case stated by reference to proposed issues identified in [1] of those reasons. In the end, I declined to order a case stated. But in the course of those reasons I rendered a number of observations concerning prima facie concerns which I held about the underlying viability of the causes of action framed by the plaintiffs under their then second further reamended statement of claim of 31 August 2015: see, for instance, my observations at [62] - [63] concerning the need for an order quashing and invalidating the relevantly impugned administrative decision - effectively as the outcome of a judicial review application brought by a party with standing. See also [120], [123], [125], [142] and [144].
3 Thereafter, the dismissal consensus as between the plaintiffs and the first defendant has unfolded. However, as between the plaintiffs and the second and third defendants, a termination consensus has not been able to be reached due to disagreement over costs orders.
4 The present application is brought by the plaintiffs seeking leave to discontinue (leave being required given the advanced state of the pleadings between the parties), or 'alternatively that those claims be dismissed'.
5 On 6 April 2016 the plaintiffs and the second and third defendants agreed that this issue be determined on the papers. Consequently, on 6 April 2016 I ordered that:
The costs of the plaintiffs' action against the second and third defendants, upon it being discontinued or dismissed as the case may be, are also reserved for determination on the papers.
6 In furtherance of those orders, I also issued some directions concerning an exchange of written submissions as between the parties.
7 The plaintiffs wished to file some affidavit materials in respect of discontinuance, dismissal and costs issues. This it has done through the affidavit of Douglas James Shave, sworn 19 April 2016, on behalf of the plaintiffs.
8 There followed the written submissions of the second and third defendants of 10 May 2016, contending essentially that the plaintiffs should be at liberty to discontinue, but on a basis that the plaintiffs be made responsible for the defendants' taxed costs, incurred up to a point of discontinuance. (I mention, in relation to costs upon a discontinuance before receipt of a defendant's defence, O 23 r 2(1) of the Rules of the Supreme Court 1971 (WA) (RSC). Where leave of the court to discontinue is required, see RSC O 23 r 2(3) as to the court's broad discretion in relation to costs orders in such circumstances.) On the other hand, the plaintiffs by their written submissions of 17 May 2016 and in reliance upon the matters explained in the Shave affidavit, contend there should be a discontinuance by leave or, alternatively, a dismissal, but with 'no order as to costs'.
9 In support of or against the parties' respective positions on costs the usual case authorities were cited to me. Very recently in this court, in my decision in Rodgers v De Mol Investments Pty Ltd [No 2] [2016] WASC 151, I had occasion to consider applicable case authorities in this area: see the observations concerning the case law in Rodgers at between [14] - [16], which I will not repeat. In an earlier decision of mine, Rigging West Pty Ltd v Stanick Pty Ltd [2013] WASC 185, I considered the scenario of appropriate costs orders in a context of dismissal, rather than discontinuance of that particular action. For both scenarios, principles as explained by McHugh J in Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 are enlightening. A plaintiff who is essentially seen to be giving up or surrendering, after commencing the litigation, carries a prima facie exposure to bearing the taxed costs of the opposite party or parties, the plaintiff having, in effect, put the other parties to the expense of defending. The court, however, always retains a residuary discretion under such a costs evaluation exercise. On the other hand, where some intervening or unexpected factor has emerged after the litigation has been commenced, so as to substantively remove or heavily qualify the underlying subject matter of the dispute, then in such circumstances the plaintiff who has acted reasonably in commencing the litigation may be granted leave to discontinue or to terminate, without also bearing a costs exposure to the other litigating parties: see the full Federal Court in Chapman v Luminis Pty Ltd [2003] FCAFC 162 [7]. See also observations of Beech J in McClure v The Mayor and Councillors of the City of Stirling [No 3] [2009] WASC 247 and Re Western Australian Planning Commission; Ex parte Solomon [2010] WASCA 236 (S).
10 In present circumstances, the plaintiffs rely upon the affidavit of Mr Shave to contend that they should be allowed to discontinue or have this action dismissed (as it has against the first defendant), without bearing any costs exposure to the second and third defendants.
11 Mr Shave's 36-paragraph affidavit of some 91 pages falls effectively into two sections. First, as between pars 1 and 30, he would, as I assess his materials, in effect, seek to justify the merit of the stance which he took in commencing and continuing the present action, as entirely reasonable based upon the matters which concerned him at the time. These are, in effect, the same expressed concerns that find themselves incorporated into the plaintiffs' second further reamended statement of claim of 31 August 2015. Whilst I accept Mr Shave's asserted bona fides in relation to the plaintiffs' commencement of the litigation, the matters to which he has referred do not persuade me that, at the end, the variously pursued causes of action put against the second and third defendants would be more than likely to be successful at a trial. Those merits considerations alone are not of themselves enough to persuade me to exercise the discretion as to costs on a basis of allowing the plaintiffs to 'walk away' with no costs exposure to the second and third defendants.
12 However, more relevantly to the current costs debate are pars 31 through 36 of Mr Shave's affidavit. In this section of his evidence he informs me that the term of the planning approval the subject of the contentious resolution passed by the first defendant lapsed. The second and third defendants' solicitors then advised the plaintiffs' solicitors by letter of 17 December 2015 that the development would not be commenced.
13 The plaintiffs' solicitors sought an undertaking on 21 December 2015 that there would be no application for an extension of the period open for development approval. The undertaking was provided by letter of 23 December 2015, which undertaking in turn was accepted by the plaintiffs, according to Mr Shave.
14 Mr Shave then relates (par 32) for the plaintiffs that he instructed his solicitors to apply for a discontinuance of the proceedings as against the second and third defendants, on the basis that there be no order as to costs. He relates that the proposed discontinuance was acceptable to the solicitors for the second and third defendants, save only that costs were sought. Conferral between the solicitors has not been able to resolve that issue.
15 Under his affidavit Mr Shave says further:
33. At the time I instructed my solicitors to issue proceedings on behalf of the plaintiffs, I did not know whether or not the approved development would be substantially commenced at any stage during the proceedings. Although an undertaking not to commence development had not been given, I was reluctant to sign an undertaking as to damages if I brought an interlocutory application for restraint, as I was relying at that stage to a considerable extent on testimony given to me by witnesses, rather than on my own personal knowledge.
34. Further, I have been advised by my solicitors that entry on to the CMC list would facilitate a prompt resolution of the matter, so that if it looked like any substantial commencement may take place, the court may be in a position to list the hearing of the matter urgently for final resolution.
35. I had successfully obtained extensions of time for planning approval on three occasions previously, and was aware that there was scope for the second and third defendants to obtain an extension of time of the planning approval, if I needed. I did not know until informed by the solicitors for the second and third defendants in late December last year that the approval period had lapsed with no application for an extension of time. I instructed the plaintiffs' solicitors to request an undertaking that an application would not then be sought.
36. Accordingly, at no stage prior to the issue of the writ, or during the proceedings until December 2016, had I considered that there was no need for the proceedings to be issued, or that they may be rendered futile. That position was not reached in my opinion until the plaintiffs' solicitors obtained the undertaking from the second and third defendants in December 2015 that they would not seek an extension of time for substantial commencement of the approved development. I caused no further steps in these proceedings to take place after that point, as there was therefore no need to pursue the relief sought by the plaintiffs.
16 The second and third defendants' written submissions of 10 May 2016 raise a number of evidentiary objections against Mr Shave's affidavit. Ultimately, it is not necessary to determine those objections, save in relation to par 35, which is challenged on the basis that it is speculative. I have set out par 35 earlier. On my assessment, it is not vulnerable to challenge as regards its admissibility on the basis that it is speculative.
17 By par 7 of their written submissions the second and third defendants accept that the proceedings and relief against them became nugatory. They say:
Ultimately, the expiry of the approval rendered these proceedings, and the relief sought by the plaintiff, nugatory.
18 The accepting of that proposition by the defendants is significant as regards costs. It is essentially a linchpin upon which the plaintiffs rely to contend as regards costs, that there should be a discontinuance and no costs orders, by reason of the intrusion of a supervening event bearing upon the viability of the litigation. That scenario they say is distinct factually to the alternate situation of a 'surrender' scenario in litigation, where the surrendering plaintiff stands vulnerable at that time to a costs exposure to the other parties' costs.
19 The second and third defendants seek to advance a proposition that the plaintiffs ought to have sought an interlocutory injunction against the second and third defendants, rather than seek only final relief as they did by their writ and pleadings. The plaintiffs' written submissions reject that contention - see par 19 of those submissions.
20 On my assessment, a tactical decision of the plaintiffs to not seek interlocutory injunctive relief does not bear upon the present evaluation, as regards the appropriate discretionary costs order, in a context of a dismissal or discontinuance of the action as against the second and third defendants.
21 The second and third defendants' written submissions also rely upon and refer me to a decision of Finn J of the Federal Court in ACN 116 149 092 Pty Ltd v Coopers Brewery Ltd [2006] FCA 1119 as regards his Honour's costs orders in that context - where there was a potential futility seeded in that action from the outset and which was foreseeable when the proceedings were begun. I note his Honour's observations at [22], where he said:
… From its inception this matter contained the seeds of its own futility, yet ACN was prepared to proceed and put Coopers to its defence. In so doing ACN assumed the risk of the proceedings becoming futile.
22 The plaintiffs' written submissions take issue with the appropriateness of applying Finn J's observations to the present litigation. In particular, they reject any suggestion their litigation was commenced in circumstances of foreseeable, looming futility. Those observations are rendered in the present factual context of an expiry of the second and third defendants' development approval post commencement of this action. The second and third defendants suggest the lapse was likely to follow after a passage of time - resulting, as it now seems to be accepted, in the action becoming futile (see par 15(b) of the second and third defendants' written submissions).
23 The second and third defendants would seek to portray the plaintiffs as having gambled on a risk as to the proceedings becoming futile, by reason of the defendants' relevant development approval lapsing, by reason of the failure of the defendants to commence development in accord with the time allowed under the development approval. That scenario of expiry and non-commencement transpired towards the end of the 2015 calendar year.
24 For myself, I would not accept here that the present facts are sufficiently analogous to a 'seeds of its own destruction' futility scenario, that occasioned the observations of Finn J in the Coopers Brewery decision. I would not conclude that the plaintiffs should have foreseen that the second and third defendants would not commence development within the allocated time afforded them or, further, that the duration of the development approval would not be extended in terms of its initial duration or, even further, that it would then completely lapse, as it did, towards the end of 2015.
Determination as to costs orders upon termination of the litigation against second and third defendants
25 In all the circumstances, the present case manifests, on my assessment, as more akin to a supervening event scenario, rather than a case of a unilateral plaintiff surrender and withdrawal. As seen, the second and third defendants do accept by their submissions that the expiry of the development approval has rendered the proceedings and the relief sought in them by the plaintiffs 'nugatory'. That acceptance is pivotal. Furthermore, as a matter of policy, the sensible resolution of civil disputes at an early point ought to be encouraged and not inhibited by legal costs demands - where each side has a respectable position.
26 Whilst my reserved reasons offered prima facie observations concerning possible future obstacles which loomed for the parties 'down the track', essentially all those reasons determined was to refuse the application of the first defendant on its proposed tripartite case stated questions - which had been opposed by the plaintiffs. Whilst noticing some possible obstacles upon issues of future possible difficulty, I did not, and could not then, go so far as to conclude the action as a whole as a matter of merit was without any foundation as against all defendants.
27 As seen, the first defendant and the plaintiffs were subsequently able to agree that the action be dismissed with no order as to costs as between themselves.
28 In relation to the position as regards the second and third defendants, my view is that the plaintiffs should have leave to discontinue against the second and third defendants and that it be ordered (see Le Miere J in Walter v Buckeridge [No 4] [2011] WASC 313, as referred to in my reasons in Rigging West) that the action as against those defendants be now discontinued (rather than dismissed). Hence, in the exercise of my discretion as to costs, the action will now be discontinued as against the second and third defendants and with no order as to costs as between the plaintiffs and the second and third defendants. My determination as to no order as to costs as between these parties should also extend to and encompass any costs associated with the present contested application. I reach that position because albeit I have at the end accepted the plaintiffs' submissions as to costs upon a discontinuance, the defendants' countervailing stance was not unreasonably advanced and, given the plaintiffs do need, in any event, the indulgence of the court by leave to discontinue, that overall result as regards to costs is just.
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