SSYBA Pty Ltd v Lane
[2013] WASC 445 (S)
•21 MARCH 2014
SSYBA PTY LTD -v- LANE [2013] WASC 445 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 445 (S) | |
| Case No: | CIV:1647/2011 | ON THE PAPERS | |
| Coram: | McKECHNIE J | 21/03/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Order for indemnity costs on Supreme Court scale | ||
| B | |||
| PDF Version |
| Parties: | SSYBA PTY LTD MICHAEL JOSEPH GRIFFIN MICHAEL REUBEN LANE LAMAC COMMERCIAL PLUMBING PTY LTD (IN LIQ) |
Catchwords: | Costs Whether claim could have been brought in Magistrates Court Whether order for indemnity costs appropriate No new principles |
Legislation: | Nil |
Case References: | Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 SSYBA Pty Ltd v Lane [2013] WASC 445 Vella v Ivanovski (1984) WAR 8 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First plaintiff
MICHAEL JOSEPH GRIFFIN
Second plaintiff
AND
MICHAEL REUBEN LANE
First Defendant
LAMAC COMMERCIAL PLUMBING PTY LTD (IN LIQ)
Second Defendant
Catchwords:
Costs - Whether claim could have been brought in Magistrates Court - Whether order for indemnity costs appropriate - No new principles
Legislation:
Nil
Result:
Order for indemnity costs on Supreme Court scale
Category: B
Representation:
Counsel:
First plaintiff : No appearance
Second plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
First plaintiff : Benz Legal
Second plaintiff : Benz Legal
First Defendant : In person
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115
SSYBA Pty Ltd v Lane [2013] WASC 445
Vella v Ivanovski (1984) WAR 8
1 McKECHNIE J: On 13 December 2013 I gave judgment in favour of the plaintiffs: SSYBA Pty Ltd v Lane [2013] WASC 445. The primary relief sought by the plaintiffs was a mandatory injunction which I granted. Damages totalling $57,192 were awarded to be paid to the plaintiffs by the first defendant.
2 The plaintiffs' claim for exemplary damages was not allowed.
3 Subsequent to judgment, the parties made submissions on costs. The plaintiffs sought orders for indemnity costs. The general principles are set out in Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 [16] - [32] which I apply.
4 The plaintiffs supported the application with an affidavit of their solicitor Ms Benz sworn 18 December 2013. That affidavit discloses that on 13 February 2012 the plaintiffs' solicitors sent the defendants' solicitors an offer of settlement pursuant to the Rules of the Supreme Court 1971 (WA) O 24A. The offer was on the following basis:
1. Your client's provide a fully indemnity for the costs, including consequential costs, of repair works to the East Wall, as advised by Stephen Woodhouse, undertaken by an agreed contractor to the satisfaction of our clients and supervised by Stephen Woodhouse, with the repair works to be undertaken at times convenient to our client's business requirements;
2. Your client's provide the following irrevocable undertaking:
'Until further order, the defendant's be and are hereby restrained from placing on or affixing to, or causing, or permitting to be placed on, or affixed to the East Wall of the premises constructed on Lot 50, any item whatsoever'; and
3. Your client's pay our clients $10,000 being damages for the trespass.
5 The offer was left open for a period of 28 days.
6 The defendants' solicitors acknowledged receipt on 14 February 2012 but there was no further communication.
7 On 19 June 2013 the plaintiffs' solicitors wrote directly to Mr Lane, the first defendant. The offer was:
1. You provide a full indemnity for the costs, including consequential costs, of repair works to the East Wall, as advised by Stephen Woodhouse, undertaken by an agreed contractor to the satisfaction of the plaintiffs and supervised by Stephen Woodhouse, with the repair works to be undertaken at times convenient to the plaintiffs' business requirements;
2. You provide the following irrevocable undertaking:
'Until further order, the first defendant be and is hereby restrained from placing on or affixing to, or causing, or permitting to be placed on, or affixed to the East Wall of the premises constructed on Lot 50, any item whatsoever.'
3. You pay the plaintiffs the sum of $10,000 being damages for the trespass; and
4. You pay the plaintiffs the sum of $13,000, being the costs associated with removing and storage of goods from the plaintiffs' leased storage units, so that the necessary repairs may be undertaken.
…
For the purposes of this offer, we draw to your attention that our clients are prepared to forego their claim for general damages for nuisance and exemplary and punitive damages, for both the trespass and the nuisance, as well as interest on any award of damages.
8 No response was received.
9 At trial the plaintiffs recovered more by way of damages than the offer. The first defendant would have been placed in a better position had he accepted the offer and not gone to trial.
10 In his responsive submissions, Mr Lane submits that O 66 r 17(1) applies:
If an action is brought in the Supreme Court which could have been brought in the Magistrates Court without the special consent of the defendant, the plaintiff shall recover no greater sum by way of costs than he could have recovered had the action been brought in the Magistrates Court, unless the Court certifies that by reason of some important principle of law being involved, or of the complexity of the issues or of the facts, the action was properly brought in the Supreme Court.
11 He submits that the action could have been brought in the Magistrates Court as the damages awarded are within the jurisdictional limit of $75,000. He submits that the Magistrates Court could have granted an injunction as ancillary relief and as there is no certificate costs should be awarded on the Magistrates Court scale.
12 The Magistrates Court (Civil Proceedings) Act 2004 (WA) s 11 provides:
(1) The Court has such powers as are incidental to and necessary for the exercise of the jurisdiction conferred on it by section 6 and of the jurisdiction referred to in section 8.
(2) The Court may grant any remedy or relief in respect of a claim within the jurisdiction conferred by section 6 -
…
(b) that the Supreme Court could grant if the claim had been made to that court.
The question that should have been asked in terms of the statute was whether, in his opinion, it was proper to bring the action in the District Court instead of in the Local Court and I emphasize whether it was proper to bring the action not whether it was proper to continue it there in the light of subsequent facts or in the light of subsequent negotiations. …
It does seem to me that having regard to what was said by Negus J in Jerinic v Metropolitan (Perth) Passenger Transport Trust (1969) WAR 132 that the central test is whether the applicant or plaintiff in the case when issuing the proceedings might reasonably have been expected to recover an amount in excess of the maximum of the jurisdiction of the Local Court.
14 Applying that test I consider that the plaintiffs' choice of the Supreme Court was appropriate for the following reasons:
1. Shortly after the proceedings commenced the plaintiffs were prepared to seek an interlocutory injunction. Whether the incidental power under the Magistrates Court (Civil Proceedings) Act s 11 supports the grant of an interlocutory injunction is an open question. However, the plaintiffs' decision to proceed in a court where such a remedy is definitely available was appropriate.
2. At the time of issue of proceedings, damages were at large. The claim for damages included a claim for exemplary damages.
Had exemplary damages been awarded, the claim would have exceeded $75,000. The plaintiffs' case for exemplary damages was reasonably arguable even though in discretion I did not award them.
15 At the time of issuing the proceedings the plaintiffs appropriately chose to issue those proceedings in the Supreme Court.
16 The actions of the first defendant in failing to accept either of the offers made under O 24A were unreasonable. In fact it is reflective of his behaviour from the very beginning.
17 This is an appropriate case for an award of indemnity costs.
18 I order:
1. Costs to be taxed under the relevant Legal Practitioners (Supreme Court) (Contentious Business) Determination from 13 March 2012. The costs be allowed on an indemnity basis.
2. The first defendant pay the plaintiffs' taxed costs.
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