Ryan v Ess Pty Ltd - [2006] NTSC 36

Ryan v Ess Pty Ltd & Ors [2006] NTSC 36
PARTIESRYAN v ESS PTY LTD & ORS
TITLE OF COURT                SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN
JURISDICTION  Civil
FILE NUMBER  25 of 2005 (20504486)
DELIVERED  3 March 2006
HEARING DATE                   16 February 2006
REASONS OF  The Master
CATCHWORDS
PRACTICE - Northern Territory – costs – Supreme Court Rules O.63 – standard basis cf indemnity basis – solicitor and client costs – taxation before the conclusion of the proceeding

CASES FOLLOWED

Colgate Palmolive v Cusson (1993) 46 FCR 225
Markorp v King (1992) 106 FLR 286
Re Wilcox (1996) 72 FCR 151
Vivanet v Power [2001] NTSC 66

CASES REFERRED TO

E.M.I Records v Ian Wallace [1983] 1 Ch. 59
TTE v Ken Day [1992] 2 NTLR 143

REPRESENTATION

Solicitors:
Plaintiff  Morgan Buckley
Second Defendant                Cridlands
Third Defendant  Hunt & Hunt
Fourth Defendant                  Ward Keller

Judgment category classification
Judgment ID number mas1106
Number of pages 5

IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

AT DARWIN

No. 25 of 2005 (20504486)

BETWEEN:
MICHAEL WAYNE RYAN
Plaintiff

and
ESS PTY LTD
(ACN: 061 845 430)
First Defendant

INTICO (WA) PTY LTD
(ACN: 068 898 037)
  Second Defendant
PROSAFE RIGS LIMITED
(ABN: 46 103 055 429)
  Third Defendant
CONOCOPHILLIPS JDPA PTY LTD
(ACN: 097 445 942)
  Fourth Defendant

MASTER COULEHAN: REASONS FOR DECISION

(Delivered: 3 March 2006)

This proceeding was commenced by writ on 21 February 2005, the plaintiff claiming damages for personal injuries suffered on 22 August 2003. On 5 July 2005 the plaintiff was ordered to file and serve his statement of claim within 3 months. On 18 November 2005 this order was extended for a further 28 days from that date. On 9 February 2006 the fourth defendant applied for an order that the proceeding be dismissed for want of prosecution and failure to comply with the order made on 18 November 2005.

The application was heard on 16 February 2006, on which date the plaintiff was ordered to file and serve his statement of claim within 7 days, failing which his claim was to be dismissed. The fourth defendant has sought the costs of this application, on a solicitor and client basis, to be taxed forthwith.

The general rule is that, subject to the Rules, the costs of a proceeding are in the discretion of the Court (O.63.03 (1)). Where the strict application of Order 63 would result in an anomaly, the Court may make such order as to costs as it thinks equitable in the circumstances (O.63.03 (2)). Costs shall be taxed on the standard basis or the indemnity basis (O.63.25).

On the standard basis a reasonable amount shall be allowed for all costs reasonably incurred and any doubt as to whether the costs were reasonably incurred shall be resolved in favour of the paying party (O.63.26). On the indemnity basis all costs are allowed except to the extent that they are of an unreasonable amount or have been unreasonably incurred, and any doubts…

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 Ryan v Ess Pty Ltd

Details

AGLC: Ryan v Ess Pty Ltd [2006] NTSC 36
Case: [2006] NTSC 36
Decision Date: 3 March 2006

CaseChat Overview and Summary

In Ryan v Ess Pty Ltd, the plaintiff, Michael Wayne Ryan, sought damages for personal injuries he suffered on August 22, 2003. The defendant, Ess Pty Ltd, and three other defendants filed an application for dismissal of the proceeding due to Ryan's failure to comply with court orders to file and serve his statement of claim. The application was heard on February 16, 2006, and the defendants sought costs on a solicitor and client basis to be taxed forthwith. The primary legal issue was whether the court should allow costs on the indemnity basis, which permits all costs except those that are unreasonable or unreasonably incurred, as opposed to the standard basis, which allows a reasonable amount for all costs reasonably incurred.

The court examined the relevant rules and case law to determine the appropriate basis for taxing costs. It noted that while the standard basis generally applies, the court may order costs to be taxed on the indemnity basis if circumstances warrant departure from the general rule. The court concluded that while Ryan was in default for failing to comply with the court's orders, there was insufficient evidence to suggest wilful disobedience. Therefore, the court was not persuaded that this was a proper case for indemnity costs. Additionally, the court found that an order for taxation before the conclusion of the proceeding was not warranted, as the costs of the interlocutory application should not be substantial and might be offset by other applications. Consequently, the court denied the defendants' request for costs on a solicitor and client basis and ordered that costs be taxed on the standard basis.

The court ordered that the costs of the application be taxed on the standard basis, with each party bearing their own costs. No further orders were made regarding the proceeding's dismissal or the taxation of future costs.

Orders