Staley v Pivot Group Pty Ltd [No 4] - [2010] WASC 120

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: STALEY -v- PIVOT GROUP PTY LTD [No 4] [2010] WASC 120

CORAM: KENNETH MARTIN J

HEARD: 15 APRIL 2010

DELIVERED : 15 APRIL 2010

PUBLISHED : 31 MAY 2010

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

Catchwords:

Costs - Application to increase allowances - Order for costs thrown away on amendment of statement of claim before trial - Extension of time sought - Allowances increased to indemnity potential

Legislation:

Legal Profession Act 2008 (WA), s 280(2)
Rules of the Supreme Court 1971 (WA), O 66 r 51(2)

Result:

Extension of time granted and orders in terms of defendant's chamber summons

Category: B

Representation:

Counsel:

Plaintiffs: Mr D J Garnsworthy
Defendant: Mr M L Bennett & Ms C L Donald

Solicitors:

Plaintiffs: Staffa Lawyers
Defendant: Lavan Legal

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

Geneva Finance Ltd v Resource and Industry Ltd [2002] WASC 121
Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in Liq) [2007] WASC 254 (S)
Staley v Pivot [No 3] [2009] WASC 355
West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185

KENNETH MARTIN J:

(This judgment was delivered extemporaneously on 15 April 2010 and has been edited from the transcript)

By the defendant's chamber summons of 26 February 2010 it seeks an order for increased allowances on taxation, see paragraph 1:
Upon taxation of the defendant's costs thrown away pursuant to the Orders made on 14 September 2009, by section 280(2)(c) of the Legal Profession Act 2008, any limits fixed by any applicable costs determination be removed on the basis that the defendant shall be entitled to an indemnity in respect of its costs incurred, except to the extent that such costs were not reasonably incurred.
That application is supported by the affidavit of Ms Cinzia Lee Donald, affirmed 26 February 2010, which attaches materials including the defendant's draft bill of costs prepared for taxation pursuant to order 3 of my orders of 14 September 2009. That draft bill of costs shows various items claimed by the defendant with the subtotal (apart from disbursements) amount including GST, of $221,941.50.
When the matter first came on before me for mention, counsel for the plaintiffs indicated that the defendant's application was firmly opposed. As a consequence, I made orders directing that the parties each file brief written submissions in respect of their respective positions. The plaintiffs did so by written submissions dated 10 March 2010, essentially opposing the application on a number of grounds, including a functus officio argument to the effect that my jurisdiction to make a special costs order in the terms sought, had essentially expired.
Further arguments were raised by the plaintiffs' counsel against the appropriateness of a special costs order. Then, in the alternative, it was argued that were I still minded to make such orders, they should be made only…

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 4]

Details

AGLC: Staley v Pivot Group Pty Ltd [No 4] [2010] WASC 120
Case: [2010] WASC 120
Decision Date: 31 MAY 2010

CaseChat Overview and Summary

Staley commenced proceedings against Pivot Group, alleging breach of contract. The case was listed for trial but before the hearing, Staley amended the statement of claim. Pivot sought an order that the costs incurred on the original pleadings be thrown away, and that the new pleadings be assessed on an indemnity basis. Staley opposed the application. The court was required to determine whether the costs of the original pleadings could be disregarded and, if so, whether the new pleadings should be assessed on an indemnity basis.

The court noted that an amendment to a pleading before trial is a significant step, and the consequences of such an amendment should be carefully considered. The court found that the amendment was material, as it fundamentally changed the nature of the claim. The court concluded that the costs incurred on the original pleadings were thrown away and should not be recoverable. The court further found that the amendment warranted an indemnity costs order as it was an abuse of process to allow the party to proceed with the new pleadings without bearing the consequences of the amendment. Staley's opposition to the application was dismissed, and the court increased the costs allowances to indemnity potential.

Orders