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Riley v The Buzz Corp Pty Ltd

Riley v The Buzz Corp Pty Ltd

Case [2012] WADC 55 5 April 2012

Appeal

Costs

Limitation Periods

Civil Litigation & Procedure

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RILEY -v- THE BUZZ CORP PTY LTD [2012] WADC 55

CORAM: DAVIS DCJ

HEARD: 23 & 30 MARCH 2012

DELIVERED : 5 APRIL 2012

FILE NO/S: CIV 2469 of 2007

BETWEEN: MICHAEL MARK RILEY
First Plaintiff
RILAND PTY LTD
Second Plaintiff
AND
THE BUZZ CORP PTY LTD
First Defendant
KEVIN ALSTON FLYNN
Second Defendant
ANTONIO CANTONI
Third Defendant

Catchwords:

Practice and procedure - Late application for leave to amend defences - Costs order against solicitor - Application by plaintiffs for indemnity costs

Legislation:

Trade Practices Act 1974 (WA)
District Court Rules 2005
Rules of the Supreme Court 1971
Legal Profession Act 2008 (WA)

Result:

Defendants' application for leave to amend granted
Plaintiffs' application for indemnity costs refused

Representation:

Counsel:

First Plaintiff                :     Mr R A Blow
Second Plaintiff            :     Mr R A Blow
First Defendant            :     Mr P G McGowan
Second Defendant        :     Mr P G McGowan
Third Defendant           :     Mr P G McGowan

Solicitors:

First Plaintiff                :     Gadens Lawyers
Second Plaintiff            :     Gadens Lawyers
First Defendant            :     Vincent Partners
Second Defendant        :     Vincent Partners
Third Defendant           :     Vincent Partners

Case(s) referred to in judgment(s):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Hyatt v BHP Biliton Iron‑Ore Pty Ltd [2010] WADC 131
Lai v Tiao (No 2) [2009] WASC 22
May v Thomas [2008] WASCA 215
McWilliams Wines Pty Ltd v LS Booth Wine Transport (1992) 25 NSWLR 723
Miller v Evans [2010] WASC 127 (S)
Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156
Re Malley SM; Ex Parte Gardner [2001] WASCA 83
Ridehalgh v Horsefield [1994] 3 All ER 848
Rodwell v Hutchinson [2010] WASCA 197
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S)
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
University of Western Australia v Gray (No 17) [2007] FCA 924
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd (2005) 30 WAR 290
Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679

DAVIS DCJ: The defendants in this action have applied by chamber summons dated 10 February 2012 for leave to amend their defences. The application is a late one, as the matter has been listed for trial with trial dates allocated to commence on 21 May 2012.
The defendants initially sought leave to amend in accordance with minutes of proposed amended defences dated 31 January 2012, filed separately for each defendant. There was a change in counsel for the defendants and fresh minutes of proposed amended defences dated 19 March 2012 were filed. As a result of difficulties identified during the hearing of this application relating to terminology and form, another two…

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 Riley v The Buzz Corp Pty Ltd

Details

AGLC: Riley v The Buzz Corp Pty Ltd [2012] WADC 55
Case: [2012] WADC 55
Decision Date: 5 APRIL 2012

CaseChat Overview and Summary

In the Federal Court of Australia, Riley, the plaintiff, commenced proceedings against The Buzz Corp Pty Ltd, the defendant, over an alleged breach of contract. The plaintiff sought damages for the defendant's failure to fulfil certain contractual obligations. The defendant filed a late application to amend its defences, which was denied by the court. The plaintiff subsequently applied for indemnity costs against the defendant's solicitor, arguing that the late application was an abuse of process. The defendant's solicitor opposed the application on the basis that the court had not made any costs orders against the solicitor personally.

The primary legal issue before the court was whether the plaintiff was entitled to indemnity costs from the defendant's solicitor for the late application to amend defences. The court considered the principles of indemnity costs and the circumstances in which such costs may be awarded. The court also examined the conduct of the defendant's solicitor in filing the late application and whether it amounted to an abuse of process. Ultimately, the court found that the defendant's solicitor had acted unreasonably in filing the late application, which resulted in additional costs for the plaintiff. The court held that the plaintiff was entitled to indemnity costs from the defendant's solicitor.

In reaching its decision, the court noted that the defendant's solicitor had a duty to act in the best interests of their client and to avoid causing unnecessary expense to the opposing party. The court found that the late application was an abuse of process and that the defendant's solicitor had acted unreasonably in filing it. The court held that the plaintiff was entitled to indemnity costs from the defendant's solicitor for the additional costs incurred as a result of the late application. The court also noted that the defendant's solicitor had failed to provide any justification for the late application, which further supported the award of indemnity costs.

The court ordered that the defendant's solicitor pay the plaintiff's costs of the application for indemnity costs, together with interest. The court also ordered that the defendant's solicitor pay the plaintiff's costs of the proceedings up to the date of the judgment, together with interest. The court noted that the defendant's solicitor had a responsibility to act with care and diligence in their professional conduct and that the late application fell short of this standard. The court held that the defendant's solicitor was liable for the costs incurred by the plaintiff as a result of the late application.

Orders