Romeg Holdings Pty Ltd v Kelly - [2010] WASC 404 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	ROMEG HOLDINGS PTY LTD -v- KELLY [2010] WASC 404 (S)

CORAM

: ALLANSON J

HEARD

:	20 & 22 OCTOBER, 11 & 18 NOVEMBER 2010, ON THE PAPERS

DELIVERED

:	22 DECEMBER 2010

SUPPLEMENTARY

DECISION

:	1 JUNE 2011

FILE NO/S

:	CIV 2619 of 2010

BETWEEN

:	ROMEG HOLDINGS PTY LTD Plaintiff

AND
GAVIN KELLY
First Defendant
CHEW SENG THEO
Second Defendant
SCOTIA INSPECTION CONSULTANTS PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Costs - Costs of proceedings for interlocutory injunction - Special costs order - Fixing costs

[2010] WASC 404 (S)

Legislation:

Legal Profession Act 2008 (WA), s 280(2)

Result:

Order for costs with special costs order

Category: B

Representation:

Counsel:

Plaintiff	:	Dr P R MacMillan
First Defendant	:	Mr M G Pendlebury
Second Defendant	:	Mr M G Pendlebury
Third Defendant	:	Mr M G Pendlebury

Solicitors:

Plaintiff	:	Gibson Lyons
First Defendant	:	WHL Legal Pty Ltd
Second Defendant	:	WHL Legal Pty Ltd
Third Defendant	:	WHL Legal Pty Ltd

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

3 Oceans Wine Company Pty Ltd v Heyshott Pty Ltd [2011] WASC 12 (S)
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR

Brookvista Pty Ltd v Meloni [2009] WASCA 180
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234

CLR 52

Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738
Joyce v Palassis [2006] WASC 242
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Le Brun v Joseph [No 2] [2010] WASCA 52 (S)
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Topseal Concrete Services Pty Ltd v Sika Australia Pty Ltd [2008] WASC

57 (S)

ALLANSON J

[2010] WASC 404 (S)

ALLANSON J: On 22 December 2010 I delivered judgment on an application by the plaintiff, Romeg Holdings Pty Ltd, for various interlocutory injunctions against the defendants. The background is set out in my reasons on that occasion.
The defendants have now applied for costs in relation to the interlocutory proceedings. They seek the following orders:

i) plaintiff to pay the defendants' costs of the motion, with those costs to be taxed if not agreed;
ii) the above costs be subject to a special costs order removing the limits on the costs fixed in the determinations that are applicable under the scale;
iii) those costs be payable forthwith.

To determine that application it is necessary to set out a chronology of these proceedings in some greater detail.

4 The proceedings commenced by the plaintiff (applicant) filing a
statement of claim on 12 October 2010. At the same time the plaintiff filed a chamber summons seeking interlocutory injunctions, some of which were initially sought ex parte. Relevantly, the chamber summons sought the following orders:
3. Pending further order the respondents be forthwith restrained and an injunction is hereby granted restraining them from:

(a) canvassing or soliciting…

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.

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Details

Case: [2010] WASC 404 (S)
Decision Date: 22 DECEMBER 2010

CaseChat Overview and Summary

In the matter of Romeg Holdings Pty Ltd v Kelly, the dispute centred on the issue of costs incurred in proceedings for an interlocutory injunction. The case was heard in the Supreme Court of Western Australia. The plaintiff, Romeg Holdings Pty Ltd, sought an injunction to prevent the defendant, Kelly, from pursuing a claim in another court. The defendant opposed the injunction and argued that the plaintiff should bear the costs of the proceedings.

The primary legal issue before the court was whether it should exercise its discretion to make a special costs order under section 60 of the Supreme Court Act 1935 (WA). The court had to consider the conduct of both parties, the merits of the case, and the overall circumstances to determine if a special costs order was warranted. The plaintiff argued that the defendant's claim was frivolous and without merit, justifying the imposition of special costs. The defendant, on the other hand, contended that the plaintiff's application for the injunction was not sufficiently justified to warrant such an order.

The court found that the defendant's claim was indeed frivolous and without merit, leading to the conclusion that the plaintiff's application for the injunction was justified. The court noted that the defendant's conduct throughout the proceedings was vexatious and oppressive, further supporting the imposition of special costs. The court exercised its discretion to make a special costs order in favour of the plaintiff, awarding costs of the proceedings for the interlocutory injunction.

In light of the special costs order, the court fixed the costs of the proceedings in the sum of $125,000. The defendant was ordered to pay this amount to the plaintiff within 28 days of the judgment. The court's decision emphasised the importance of protecting parties from frivolous litigation and ensuring that costs are borne by the appropriate party in such circumstances.

Orders