Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney (a firm)
[2011] WASC 167 (S)
•7 JULY 2011
RIDGEPOINT CORPORATION PTY LTD -v- McCALLUM DONOVAN SWEENEY (A FIRM) [2011] WASC 167 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 167 (S) | |
| Case No: | CIV:2127/2007 | 16 JUNE 2011 | |
| Coram: | KENNETH MARTIN J | 7/07/11 | |
| 19/09/11 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Costs to be plaintiff's costs in the cause of the action against the second defendant | ||
| B | |||
| PDF Version |
| Parties: | RIDGEPOINT CORPORATION PTY LTD McCALLUM DONOVAN SWEENEY (A FIRM) PHILLIPS FOX (A FIRM) |
Catchwords: | Costs Summary judgment application under RSC O 16 |
Legislation: | Nil |
Case References: | Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21 Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, BC 9201139, 19 June 1992) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 19 SEPTEMBER 2011 FILE NO/S : CIV 2127 of 2007 BETWEEN : RIDGEPOINT CORPORATION PTY LTD
- Plaintiff
AND
McCALLUM DONOVAN SWEENEY (A FIRM)
First Defendant
PHILLIPS FOX (A FIRM)
Second Defendant
Catchwords:
Costs - Summary judgment application under RSC O 16
Legislation:
Nil
(Page 2)
Result:
Costs to be plaintiff's costs in the cause of the action against the second defendant
Category: B
Representation:
Counsel:
Plaintiff : Dr J Wilson SC & Mr P Mendelow
First Defendant : No appearance
Second Defendant : Mr P Quinlan SC & Mr S Popperwell
Solicitors:
Plaintiff : Fiocco's Lawyers
First Defendant : No appearance
Second Defendant : Pynt & Partners
Case(s) referred to in judgment(s):
Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21
Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, BC 9201139, 19 June 1992)
(Page 3)
1 KENNETH MARTIN J: In the wake of my reasons dismissing the first defendant's summary judgment application against the plaintiff, the parties have filed written submissions in respect of the costs disposition of that application which is contentious. The matter is determined on the papers.
2 On the application, the successful plaintiff contended in written submissions that the costs of the second defendant's failed application for summary judgment under the Rules of the Supreme Court 1971 (WA) (RSC) O 16 should be the plaintiff's costs, assessed in the cause of the action against the second defendant. In other words, if the action does go to trial and the plaintiff ultimately proves successful against the second defendant, that then and only then will the plaintiff be entitled to receive its taxed costs incurred in resisting the second defendant's application brought against it for summary judgment. I indicated my prima facie disposition towards that costs outcome in my reasons for decision at [53].
3 The plaintiff submits (par 35 of its written submissions) that 'such an outcome is measured and reasonable, in the circumstances, as it resolves to compensate the plaintiff only in the event that it is successful at trial, as against the second defendant, thus there is no question of 'over compensation' of the plaintiff or of 'sanction' against the second defendant.
4 On the other hand, the second defendant by written submissions of 1 August 2011 contends the preferable costs order is the more orthodox order simply for costs in the cause. On that basis, even though the second defendant failed on its RSC O 16 summary judgment application, it in effect contends that if it is ultimately successful at a trial in defeating the plaintiff's application against it for damages on the merits, that such a trial outcome should deliver it the entitlement to also then receive the taxed costs of its unsuccessful summary judgment application.
5 I am not attracted to the course suggested by the second defendant since the question that will be evaluated at any trial between the plaintiff and the second defendant will be a different question to that which I evaluated on the second defendant's summary judgment application. Put simply, the second defendant was not successful in surmounting the high threshold it faced on its RSC O 16 application. It could not in the end persuade me that the plaintiff's case was so meritless or unarguable that the plaintiff's action against it should not even proceed to trial. A very distinct focus for the trial will require an evaluation of the merits of the plaintiff's case against both defendants by reference to the civil standard
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- of proof, namely the balance of probabilities. That assumes of course that the matter is one day ultimately disposed of at a trial. Nowadays in Western Australia, most actions are sensibly resolved before trial.
6 Bearing in mind that the court's approach as to costs orders is inherently discretionary, I am of the view that the fairest costs outcome is for the second defendant only to be exposed to the adverse costs consequence of failure on its RSC O 16 application in the event that the plaintiff succeeds against it at a trial. If the plaintiff ultimately fails against the second defendant at the trial, the second defendant will more than likely be awarded its taxed trial costs incurred in (ultimately) defeating the plaintiff's action. But even on the latter hypothesis, I still see no reason why the second defendant should then also receive its taxed costs relating to the summary judgment application upon which it was unsuccessful.
7 In support of the submission for a costs in the cause order generally, the second defendant referred to two authorities on costs orders, in particular Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, BC 9201139, 19 June 1992) and an even older case, Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21. They were both decisions concerning costs orders on applications for failed summary judgment applications brought by plaintiffs. In such circumstances, Blackburn CJ in Harry Smith Car Sales observed '… the costs are normally ordered to be costs in the cause, the principle being that should the defendant ultimately fail he will probably be ordered to pay the plaintiff's costs of the action which will then include the costs of the application'. Blackburn CJ also observed that in cases where the application for summary judgment should not have been made, the (successful) defendant should have his taxed costs of the application.
8 Neither decision addressed the situation of the costs of a defendant's failed application for summary judgment brought against a plaintiff. Furthermore, both decisions were delivered in the environment before intensification of case management practices now utilised by courts in Western Australia under rules such as RSC O 1 r 4A and r 4B.
9 This was an interlocutory application that was argued in the CMC List of this court - where interlocutory disputation is strongly discouraged unless it is absolutely necessary. An ultimately unsuccessful interlocutory applicant on a CMC List application would expect, in the ordinary course, to suffer a likely adverse exposure to some cost consequence arising from
(Page 5)
- its failure on an application it has been responsible for pressing to a curial determination, see CMC List Practice Direction 4.1.2(17) which provides:
A fundamental objective of the CMC List, and indeed the general practices and procedures of the Court, is the discouragement of interlocutory disputes with all means at the Court's disposal, including costs orders in appropriate cases. The procedure specified in O 4A r 3 is generally to be followed, as is the approach set out in Practice Direction 4.7.1.
11 Bearing in mind the unique nature of ascertaining the existence of a common law duty of care and its scope by reference to the particular facts and circumstances of any particular case, the second defendant's task of surmounting the dismissal threshold for RSC O 16 was always well and truly ahead of it in bringing and persisting with its application. Nevertheless, the application did actually draw from the plaintiff some revisions to its statement of claim. Arguments before me on the application also identified areas where the plaintiff's pleading was less than optimal.
12 Because of those positive features favouring the second defendant, it seemed to me that this was not an appropriate situation for the second defendant to be exposed immediately to the costs on the failure on its summary judgment application. My discretionary assessment is that exposure of the second defendant to the taxed costs of its failed summary judgment application should only crystallise in the event of the second defendant being unable to resist the plaintiff's substantive case brought against it at a trial.
13 For those brief reasons, my view is that the appropriate discretionary costs order is that the costs of the failed summary judgment application of the second defendant be the plaintiff's costs in the cause of the action as between the plaintiff and the second defendant at trial. Accordingly, I would propose to make these orders, effective seven days after the publication of these reasons (unless interrupted by my further order):
1. that the second defendant's summary judgment application be dismissed; and
(Page 6)
- 2. the costs of the unsuccessful application shall be the plaintiff's taxed costs to lie in the cause of the action as between the plaintiff and the second defendant.
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