RUSSELL -v- RCR TOMLINSON LTD [2012] WASC 405 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 405 (S)
Case No:	CIV:1229/2010	Heard:	27 NOVEMBER 2012 & ON THE PAPERS
Coram:	PRITCHARD J	Delivered:	24/09/13
No of pages:	17	Judgment Part:	1 of 1
Result:	Defendant to pay the plaintiff's costs of the action Defendant to pay interest to the plaintiff Plaintiff's application for indemnity costs is refused
Category:	B
PDF Version

Parties:	DAVID WILLIAM RUSSELL RCR TOMLINSON LTD
Catchwords:	Circumstances in which an order for payment of interest may be made pursuant to s 32 of the Supreme Court Act 1935 (WA) Exercise of discretion in relation to an order for costs pursuant to O 66 of the Rules of the Supreme Court 1971 (WA) Application for indemnity costs on the basis of unreasonable failure to accept a Calderbank offer
Legislation:	Rules of the Supreme Court 1971 (WA) Supreme Court Act 1935 (WA) Trade Practices Act 1974 (WA)
Case References:	Calderbank v Calderbank [1975] 2 All ER 333 Craddock Brothers v Hunt [1923] 2 Ch 136 Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Russell v RCR Tomlinson Ltd [2012] WASC 405 Souter v Condor Developments Pty Ltd [2012] WASCA 22 Utopia Financial Services Pty Ltd v Financial Ombudsman Service Ltd [2012] WASC 279

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RUSSELL -v- RCR TOMLINSON LTD [2012] WASC 405 (S) CORAM : PRITCHARD J HEARD : 27 NOVEMBER 2012 & ON THE PAPERS DELIVERED : 24 SEPTEMBER 2013 FILE NO/S : CIV 1229 of 2010 BETWEEN : DAVID WILLIAM RUSSELL

Plaintiff

AND

RCR TOMLINSON LTD

Defendant

Catchwords:

Circumstances in which an order for payment of interest may be made pursuant to s 32 of the Supreme Court Act 1935 (WA) - Exercise of discretion in relation to an order for costs pursuant to O 66 of the Rules of the Supreme Court 1971 (WA) - Application for indemnity costs on the basis of unreasonable failure to accept a Calderbank offer

Legislation:

Rules of the Supreme Court 1971 (WA)

Supreme Court Act 1935 (WA)
Trade Practices Act 1974 (WA)

Result:

Defendant to pay the plaintiff's costs of the action

Defendant to pay interest to the plaintiff
Plaintiff's application for indemnity costs is refused

Category: B

Representation:

Counsel:

Plaintiff : Mr P Willox

Defendant : Mr J L Snaden

Solicitors:

Plaintiff : King & Wood Mallesons

Defendant : Clayton Utz

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

Calderbank v Calderbank [1975] 2 All ER 333
Craddock Brothers v Hunt [1923] 2 Ch 136
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Russell v RCR Tomlinson Ltd [2012] WASC 405
Souter v Condor Developments Pty Ltd [2012] WASCA 22
Utopia Financial Services Pty Ltd v Financial Ombudsman Service Ltd [2012] WASC 279

1 PRITCHARD…

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: [2012] WASC 405 (S)
Decision Date: 24 SEPTEMBER 2013

CaseChat Overview and Summary

In the matter of Russell v RCR Tomlinson Ltd, the plaintiff sought recovery of damages for breach of contract, as well as interest and costs. The case was heard by the Supreme Court of Western Australia. The plaintiff, Mr Russell, alleged that the defendant, RCR Tomlinson Ltd, had breached a contract by failing to complete construction works on time and to the required standard. The defendant denied liability and argued that the plaintiff's claims were without merit.

The primary legal issues before the court were whether an order for payment of interest could be made pursuant to section 32 of the Supreme Court Act 1935 (WA) and whether the exercise of discretion in relation to an order for costs pursuant to Order 66 of the Rules of the Supreme Court 1971 (WA) was appropriate. Additionally, the court had to consider the plaintiff's application for indemnity costs on the basis of the defendant's unreasonable failure to accept a Calderbank offer.

In its judgment, the court found that an order for payment of interest could be made under section 32 of the Supreme Court Act 1935 (WA), as the defendant had failed to pay the plaintiff's claim within the specified period. The court also held that the exercise of discretion in relation to an order for costs was appropriate, and the defendant was ordered to pay the plaintiff's costs of the action. However, the plaintiff's application for indemnity costs was refused, as the court found that the defendant's failure to accept the Calderbank offer was not unreasonable. The court noted that the offer did not include an admission of liability, and the defendant had a reasonable belief that the plaintiff's claims were without merit.

The final orders of the court were that the defendant, RCR Tomlinson Ltd, was to pay the plaintiff's costs of the action and interest on the amount owed. The plaintiff's application for indemnity costs was refused.

Orders

Orders of the court

Defendant to pay the plaintiff's costs of the action

Defendant to pay interest to the plaintiff

Plaintiff's application for indemnity costs is refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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