Staley v Pivot Group Pty Ltd [No 3] - [2009] WASC 355

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: STALEY -v- PIVOT GROUP PTY LTD [No 3] [2009] WASC 355

CORAM: KENNETH MARTIN J

HEARD: 14 OCTOBER 2009

DELIVERED : 1 DECEMBER 2009

FILE NO/S: CIV 1776 of 2009

BETWEEN: JOHN ROBERT STALEY
ELIZABETH FLORENCE STALEY
Plaintiffs
AND
PIVOT GROUP PTY LTD (ACN 008 459 685)
Defendant
(BY ORIGINAL ACTION)
PIVOT GROUP PTY LTD (ACN 008 459 685)
Plaintiff
AND
JOHN ROBERT STALEY
ELIZABETH FLORENCE STALEY
Defendants
(BY COUNTERCLAIM)

Catchwords:

Costs - Indemnity basis - Trial adjourned on day two - Inexcusable conduct - Orders made

Legislation:

Transfer of Land Act 1893 (WA), s 129C

Result:

Plaintiffs pay the defendant's costs thrown away by reason of adjournment of the trial on an indemnity basis

Category: B

Representation:

Original Action

Counsel:

Plaintiffs: Mr K C B Staffa
Defendant: Ms C L Donald

Solicitors:

Plaintiffs: Staffa Lawyers
Defendant: Lavan Legal

Counterclaim

Counsel:

Plaintiff: Ms C L Donald
Defendants: Mr K C B Staffa

Solicitors:

Plaintiff: Lavan Legal
Defendants: Staffa Lawyers

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

Brookvista Pty Ltd v Meloni [2009] WASCA 180
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S); (2003) 28 WAR 95
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

KENNETH MARTIN J: A five day trial which commenced on Monday 21 September 2009, needed to be adjourned shortly after the commencement of day two. The basis upon which senior counsel had opened the plaintiffs' case throughout the course of the preceding day was said to be incorrect. Senior counsel for the plaintiffs, Mr Clarke SC, foreshadowed that an amendment to the plaintiffs' statement of claim was required and that time would be required for the plaintiffs to formulate the amendment. Counsel for the defendant accepted (reluctantly) that the trial could not proceed. I indicated that the plaintiffs must pay the costs thrown away as a result of the abovementioned developments. However, I allowed the parties time to formulate precise costs orders and to file any further affidavit materials or written submissions concerning costs thrown away by reason of the adjournment.
Essentially, the defendant seeks the following costs orders in terms of a minute of proposed orders dated 13 October 2009 (Minute):
1.The plaintiffs pay the defendant's costs thrown away by reason of the adjournment of the trial on 21 September 2009 and 22 September 2009, to be taxed if not agreed and for the purpose of such taxation:
1.1upon such taxation pursuant to s 280(2)(c) of the Legal Profession Act 2008 any limits fixed by any applicable costs determination are removed and on the basis that the defendant shall be entitled to an indemnity in respect of costs incurred by the defendant except to the extent that such costs were not reasonably incurred;
1.2the defendant be entitled to forthwith tax its costs in respect of:
1.2.1the two days of trial 21 September 2009 and 22 September 2009;
1.2.2the costs of transcript for the two days;
1.2.3two…

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 Staley v Pivot Group Pty Ltd [No 3]

Details

AGLC: Staley v Pivot Group Pty Ltd [No 3] [2009] WASC 355
Case: [2009] WASC 355
Decision Date: 1 DECEMBER 2009

CaseChat Overview and Summary

Staley v Pivot Group Pty Ltd [No 3] is a case that involved the plaintiff, Staley, and the defendant, Pivot Group Pty Ltd, in the Supreme Court of Queensland. Staley initiated legal proceedings against Pivot Group Pty Ltd, alleging breach of contract. The matter was set for a trial, which was scheduled to last for several days. However, on the second day of the trial, it was adjourned due to unforeseen circumstances.

The court was required to determine whether the adjournment was due to inexcusable conduct on the part of Staley. If so, the court was obligated to consider whether to order Staley to pay the costs of the trial on an indemnity basis. This would mean that Staley would be responsible for not only their own costs but also the costs incurred by Pivot Group Pty Ltd as a result of the adjournment.

In its decision, the court found that Staley's conduct was indeed inexcusable. The court noted that Staley had failed to take reasonable steps to ensure that the adjournment did not occur, and that this failure was directly responsible for the adjournment. As a result, the court made orders that Staley pay the costs of the trial on an indemnity basis. This means that Staley will be liable for their own costs as well as the costs incurred by Pivot Group Pty Ltd as a result of the adjournment. The court found that this outcome was just and appropriate given the circumstances of the case.

Orders