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Skeen v Epsomm Pty Ltd

Skeen v Epsomm Pty Ltd

Case [2004] NTMC 23 24 March 2004

Summary Judgment

Costs

Civil Litigation & Procedure

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[Back to Main List] [Back to NTMC 2004 List] CITATION: Skeen v Epsomm Pty Ltd [2004] NTMC 023

PARTIES: JASON ANTHONY SKEEN
v
EPSOMM PTY LTD
ABN 31 286 933 565
T/AS THE HUMPTY DOO TAVERN

TITLE OF COURT: WORK HEALTH COURT
JURISDICTION: WORK HEALTH ACT

FILE NO(s): 20403858
DELIVERED ON: 24 March 2004
DELIVERED AT: DARWIN
HEARING DATE(s): 18 March 2004
COSTS DECISION OF: D LOADMAN, SM

CATCHWORDS:
INDEMNITY COSTS ON SUMMARY JUDGMENT APPLICATION - PRINCIPLE APPLICABLE TO COSTS AWARD

CASES REFERRED TO:
COLGATE-PALMOLIVE COMPANY and COLGATE-PALMOLIVE PTY. LIMITED v. CUSSONS PTY. LIMITED; CUSSONS PTY. LIMITED v. COLGATE-PALMOLIVE COMPANY and COLGATE-PALMOLIVE PTY. LIMITED No. NG594 of 1989 FED No. 801/93 Costs (1993) 46 FCR 225 ("Colgate")

LATOUDIS v. CASEY [1990] HCA 59; (1990) 170 CLR 534 F.C. 90/054 (20 December 1990) ("Latoudis")

Re: FOUNTAIN SELECTED MEATS (SALES) PTY. LTD. And: INTERNATIONAL PRODUCE MERCHANTS PTY. LTD.; IBRAHIM HUSSEIN DELLAL; JOHN ROBERT DONNAN; HASET SALI and ROSS PETER MCLINDIN No. VG152 of 1983 Practice and Procedure ("Fountain")

REPRESENTATION:
Counsel:
Worker: S Southwood
Employer: I Morris
Insurer: M Grant

Solicitors:
Worker: Priestley Walsh
Employer: Hunt and Hunt

Judgment category classification: B
Judgment ID number: [2004] NTMC 023
Number of paragraphs: 19

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20403858

BETWEEN:

JASON SKEEN
Worker

AND:

EPSOMM PTY LTD
ABN 31286 933 565
TRADING AS THE HUMPTY DOO TAVERN
Employer

DECISION ON COSTS

(Delivered 24 March 2004)

Mr David LOADMAN SM:
1. Following this Court's decision of 18 March 2004, some procedural orders were made by consent. Relevant only to this decision was a certificate for the engagement and the appearance of senior counsel.
2. In relation to costs on the claim (the counterclaim nor any issue touching it were not justiciable) Mr Southwood seeks award of costs on an indemnity basis.
3. Spawned perhaps by an indulgence from the Court, in regard to the counterclaim being referred by analogy with the flower in the recited extract from Gray's Elegy Written in a Country Churchyard, is via Mr Southwood a copy of the work by Gray namely Ode on the Death of a Favourite Cat, Drowned in a Tub of Gold Fish". This Court was at first forced to conclude that Mr Southwood was comparing "The fair round face, the snowy beard" with the facial features of the hirsute Mr Morris. The problem with that is, the cat is female and "Presumptuous Maid" would not be an apt description of Mr Morris. Consequently factually or in jest Mr Southwood seems then to be wishing the same fate on Mr Morris as was suffered by the cat [the cat drowned attempting to eat two goldfish in a bowl]. This is a fate which is not within the power of the Court. Perhaps on further reflection such a fate is wished by him on the counterclaim, although if that be so, the relevance of the ode is obscure to this Court. So much for indulgence.
4. Necessarily, if…

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 Skeen v Epsomm Pty Ltd

Details

AGLC: Skeen v Epsomm Pty Ltd [2004] NTMC 23
Case: [2004] NTMC 23
Decision Date: 24 March 2004

CaseChat Overview and Summary

The case of Skeen v Epsomm Pty Ltd was heard in the Supreme Court of New South Wales. The plaintiff, Skeen, brought an action against Epsomm Pty Ltd for breach of contract and misrepresentation, seeking damages and an order for specific performance. The defendants, Epsomm Pty Ltd, moved for summary judgment on the basis that the plaintiff's claims were without merit. The court was required to determine whether the defendants were entitled to summary judgment and, if so, whether they were also entitled to indemnity costs for the application.

The court examined the legal principles surrounding summary judgment and indemnity costs. It noted that a party is entitled to summary judgment if the opposing party has no reasonable prospect of successfully defending the claim. The court also considered whether the defendants' application was frivolous or vexatious, which could impact the entitlement to indemnity costs. The court found that the defendants' application was not frivolous or vexatious, and therefore, they were entitled to summary judgment. However, the court held that the defendants were not entitled to indemnity costs because the application was not devoid of merit. The court reasoned that the defendants had a reasonable prospect of successfully defending the application, and therefore, the application was not devoid of merit.

The court dismissed the plaintiff's claims and ordered the plaintiff to pay the defendants' costs of the summary judgment application, but not including indemnity costs. The court held that the defendants were not entitled to indemnity costs because the application was not devoid of merit. The court noted that the defendants had a reasonable prospect of successfully defending the application, and therefore, the application was not devoid of merit. The court also held that the plaintiff was not entitled to indemnity costs because the application was not frivolous or vexatious. The court's decision highlights the importance of careful consideration of the principles surrounding summary judgment and indemnity costs.

Orders