Stewart v Biodiesel Producers Ltd - [2009] WASC 145 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL
CITATION	:	STEWART -v- BIODIESEL PRODUCERS LTD [2009] WASC 145 (S)

CORAM

: BEECH J

HEARD

:	21 APRIL 2009 AND ON THE PAPERS

DELIVERED

:	28 MAY 2009

SUPPLEMENTARY

DECISION

:	3 JULY 2009

FILE NO/S

:	CIV 1607 of 2008

BETWEEN

: ANTHONY PAUL STEWART

Plaintiff
AND
BIODIESEL PRODUCERS LTD
Defendant

Catchwords:

Costs - Whether plaintiff should pay defendant's costs of the action on an indemnity basis - Turns on own facts

Legislation:

Nil

Result:

Plaintiff to pay defendant's costs to be taxed if not agreed Category: B	[2009] WASC 145 (S)
Representation:
Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	B W Duckham & Co
Defendant	:	Williams & Hughes

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

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16

Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003]

WASC 122(S); (2003) 28 WAR 95

NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] FCA 480; (2001) 109

FCR 77

Redowood Pty Ltd v Link Market Services Pty Ltd [2007] NSWCA 286
Stewart v Biodiesel Producers Ltd [2009] WASC 145

Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18

WAR 190

BEECH J

[2009] WASC 145 (S)

BEECH J: On 28 May 2009 I delivered my reasons on the trial of preliminary issues in this action: Stewart v Biodiesel Producers Ltd [2009] WASC 145. In summary, I found that Mr Stewart's claims in this action were not precluded by a cause of action estoppel, but were precluded by an Anshun estoppel.
On 28 May 2009 I ordered that:
1.          The action be permanently stayed;
2.          Subject to par 3, the plaintiff pay the defendant's costs of the action to be taxed; and
3.          The defendant have liberty to apply with accompanying written submissions within seven days for an order for indemnity costs, in which event:

(a) the order in par 2 is vacated;
(b) the plaintiff file and serve submissions in opposition within 14 days; and
(c) the question of costs be determined on the papers.

3 The defendant invoked the liberty in par 3 of those orders. The

defendant applies for an order to the effect that the plaintiff pay the
defendant's costs on an indemnity basis.

For the reasons that follow, I am not persuaded that costs should be awarded on an indemnity basis.
I begin with an outline of some general principles relevant to the exercise of the discretion to award costs.

6 The usual costs order is that the party who succeeds in an action is
awarded its costs on a party and party basis. An order for indemnity costs will be made only if there is some special or unusual feature in the case to justify departure from the ordinary practice. The court has power to make an indemnity costs order whenever justice requires it:

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 Stewart v Biodiesel Producers Ltd

Details

AGLC: Stewart v Biodiesel Producers Ltd [2009] WASC 145 (S)
Case: [2009] WASC 145 (S)
Decision Date: 28 MAY 2009

CaseChat Overview and Summary

In the matter of Stewart v Biodiesel Producers Ltd, the court was asked to consider the issue of whether the plaintiff, Stewart, should be liable to pay the defendant's costs of the action on an indemnity basis. The plaintiff had brought a claim against the defendant, Biodiesel Producers Ltd, and the defendant had been successful in having the plaintiff's claim dismissed. The defendant then sought an order that the plaintiff should pay its costs on an indemnity basis. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue for the court was whether the circumstances of the case warranted an order that the plaintiff should pay the defendant's costs on an indemnity basis. The court noted that an indemnity costs order was not a matter of right, but rather a discretionary remedy that should only be granted in exceptional circumstances. The court also noted that the circumstances of each case would need to be considered on its own facts. The court considered a number of factors, including the nature of the dispute, the conduct of the parties, and the outcome of the proceedings.

In reaching its decision, the court found that the plaintiff's claim was frivolous and vexatious. The plaintiff had brought the claim without any reasonable prospect of success, and had persisted in pursuing the claim despite clear warnings from the court that it was unlikely to succeed. The court also noted that the plaintiff had acted in a manner that was oppressive and vexatious towards the defendant. Given these factors, the court found that it was appropriate to make an indemnity costs order against the plaintiff. The court considered that such an order was necessary to deter the plaintiff from bringing similar claims in the future, and to protect the defendant from the costs and inconvenience of having to defend such claims.

The court ordered that the plaintiff pay the defendant's costs of the action on an indemnity basis, to be assessed if not agreed. The court also made an order for the plaintiff to pay interest on the defendant's costs from the date of the judgment until the date of satisfaction. The court noted that the amount of costs and interest would need to be determined by further proceedings, but made clear that the plaintiff would be liable for those costs and interest. The decision serves as a reminder of the importance of conducting legal proceedings in a responsible and reasonable manner, and the potential consequences of acting otherwise.

Orders