Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd - [2011] ACTSC 47

Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd
[2011] ACTSC 47 (18 March 2011)

COSTS – Application for costs of interlocutory application filed by defendant – defendant discontinuing partial claim for relief at the hearing without contest – plaintiff abandoning remaining contested issues – orders for costs apportioned according to discrete issues raised by application

Court Procedures Rules 2006 (Act) rr 513, 1060, 1163, 1721
Supreme Court Act 1935 (SA) s 40
Trade Practices Act 1974 (Cth)

Cretazzo v Lombardi (1975) 13 SASR 4
Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495
Hughes v Western Australian Cricket Association (Inc) and Others (1986) 8 ATPR 40-748
Latoudis v Casey (1990) 170 CLR 534
Oshlack v Richmond River Council (1998) 193 CLR 72
Ritter v Godfrey (1920) 2 KB 47
Roadshow Films Pty Ltd v iiNet Limited (No. 4) (2010) 269 ALR 606

No. SC 1030 of 2009

Judge: Cowdroy J
Supreme Court of the ACT
Date: 18 March 2011

IN THE SUPREME COURT OF THE     )
  )          No. SC 1030 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:SUPABARN SUPERMARKETS PTY LTD
Plaintiff

AND: COTRELL PTY LTD
Defendant

ORDER

Judge:  Cowdroy J
Date:  18 March 2011
Place:  Canberra

THE COURT ORDERS THAT:

The Plaintiff pay the Defendant’s costs thrown away by virtue of the amendment of the Trade Practices claims included in the Amended Statement of Claim.
The Defendant pay the costs of the Plaintiff thrown away by the Defendant’s abandonment of its application to strike out paragraphs 10, 12, 14, 18, 21, 23, 25, 27, 36 and 37 of the Amended Statement of Claim.
The costs payable by orders 1 and 2, if not agreed upon between the parties, is to be assessed or taxed.
No further order as to costs of the Defendant’s application lodged 31 July 2009 or of its Amended Application lodged on 26 March 2010.

IN THE SUPREME COURT OF THE     )   No. SC 1030 of 2009
  )
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:SUPABARN SUPERMARKETS PTY LTD
Plaintiff

AND:COTRELL PTY LTD
Defendant

Judge:  Cowdroy J
Date:  18 March 2011
Place:  Sydney

REASONS FOR JUDGMENT

The plaintiff (‘Supabarn’) and the defendant (‘Cotrell’) each apply for orders relating to the costs of an interlocutory application brought by Cotrell. An Application was lodged by Cotrell on 31 July 2009 seeking to strike out several paragraphs of Supabarn’s Statement of Claim for lack of particulars, but was superseded by an Amended Application lodged 26 March 2010. The amendments contained in the Amended Application are not relevant for present purposes, and for convenience the Court will simply refer to Cotrell’s Amended Application and the Application lodged on 31 July 2009 as ‘the Application’.

The Application came before the Court on 21 September 2010. On that day the parties reached agreement upon the disputed issues, leaving unresolved only the issue of the costs. This judgment relates to that question.

The application for costs has, at the request of the parties, been considered in the…

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.

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Details

Case: [2011] ACTSC 47
Decision Date: 18 March 2011

CaseChat Overview and Summary

Supabarn Supermarkets Pty Ltd filed an application for costs in relation to an interlocutory application filed by Cotrell Pty Ltd. The primary dispute between the parties centred around a complex web of trade practices claims and counterclaims, with the proceedings being heard in the Federal Court of Australia. Cotrell, the defendant, had lodged an application to strike out specific paragraphs of Supabarn's Amended Statement of Claim, while Supabarn had counterclaimed under the Trade Practices Act. The matter reached a point where Cotrell discontinued its partial claim for relief at the hearing, and Supabarn subsequently abandoned the remaining contested issues. The court was tasked with determining the appropriate allocation of costs between the parties for the interlocutory application and the subsequent amendments to the pleadings.

The legal issues before the court revolved around the apportionment of costs incurred by both parties in relation to the interlocutory application and the amendments made to the pleadings. The court needed to consider the extent to which each party's actions had contributed to the costs incurred and whether any costs were thrown away as a result of the amendments or discontinuance of claims. The court also had to decide whether the costs associated with the interlocutory application should be apportioned according to the discrete issues raised by the application.

In its reasoning, the court noted that Cotrell's discontinuance of its partial claim for relief and Supabarn's abandonment of its remaining contested issues resulted in costs being thrown away by both parties. The court held that Supabarn should bear the costs thrown away due to the amendment of the Trade Practices claims, while Cotrell should bear the costs thrown away by its abandonment of the application to strike out specific paragraphs of the Amended Statement of Claim. The court further directed that if the parties could not agree on the costs to be apportioned, the costs would be assessed or taxed. The court made no further orders as to the costs of the defendant's application and its amended application.

Orders

Orders of the court

The Plaintiff pay the Defendant’s costs thrown away by virtue of the amendment of the Trade Practices claims included in the Amended Statement of Claim.

The Defendant pay the costs of the Plaintiff thrown away by the Defendant’s abandonment of its application to strike out paragraphs 10, 12, 14, 18, 21, 23, 25, 27, 36 and 37 of the Amended Statement of Claim.

The costs payable by orders 1 and 2, if not agreed upon between the parties, is to be assessed or taxed.

No further order as to costs of the Defendant’s application lodged 31 July 2009 or of its Amended Application lodged on 26 March 2010.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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