Sure Air Pty Ltd v Simonds

[2003] WADC 33

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   SURE AIR PTY LTD -v- SIMONDS [2003] WADC 33

CORAM:   COMMISSIONER GREAVES

HEARD:   5 DECEMBER 2002

DELIVERED          :   19 FEBRUARY 2003

FILE NO/S:   CIV 1449 of 1997

BETWEEN:   SURE AIR PTY LTD

Plaintiff

CRAIG CHARLES SIMONDS
Defendant

Catchwords:

Costs - Indemnity costs - Turns on its own facts

Legislation:

Nil

Result:

Application refused

Representation:

Counsel:

Plaintiff:     Mr N J Mullany

Defendant:     Mr A Atkinson

Solicitors:

Plaintiff:     Murfett & Co

Defendant:     Solomon Brothers

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

Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Harrison v Schipp [2001] NSWCA 13

Case(s) also cited:

Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359

Carroll v Azolia Pty Ltd [1998] ANZ Conv 485

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA) (No 2) (1992) 46 IR 242

John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201

Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721

Re Wilcox; Ex parte Venture Industries Pty Ltd (1996)141 ALR 727

Rouse v Shepherd (No 2) (1994) 35 NSWLR 277

Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd, unreported; Fed Ct of WA; Library No 225; 3 May 1991

Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190

Walton v McBride (1995) 36 NSWLR 440

1. COMMISSIONER GREAVES:  This is firstly an application by the successful defendant for indemnity costs.  The reasons for judgment of 1 November 2002 should be read in conjunction with these reasons.  Counsel were agreed about the principles to be applied in the exercise of the judicial discretion to award indemnity costs.  Their respective outlines of submissions refer to the relevant authorities.  The exercise of the discretion is confined to some form of delinquency in the conduct of the proceedings:  Harrison v Schipp [2001] NSWCA 13 at [1], [153]. Counsel for the defendant referred to Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 and submitted whenever it appears that an action has been commenced or continued in circumstances where the plaintiff, properly advised, should have known that he or she had no chance of success, the action must be presumed to have commenced or continued for some ulterior motive or because of some wilful disregard of known facts or of the clearly established law.

2. Counsel for the defendant submitted the disparities between the pleadings and the evidence of the plaintiff in this action were such that the court should exercise its discretion in favour of the defendant and order the plaintiff to pay indemnity costs.  The material findings are at [75] to [79] of the reasons for judgment.

3. I accept the submission of counsel for the plaintiff that it has not been demonstrated in what respect and how it is said that it should have been appreciated that the proceedings had no chance of success.  The action failed because the court did not accept the evidence of the plaintiff.  Legitimate issues arose in an acrimonious dispute between the parties.  I accept the submission of counsel for the plaintiff that whether the alleged causes of action could be established is something which always turned on an evaluation of all the evidence adduced, and on the evidence of the plaintiff and defendant in particular.  As counsel for the plaintiff submitted, that a plaintiff is found to be a poor witness is neither a special nor unusual feature of litigation warranting departure from normal cost rules.  Nothing in the applicant's supplementary outline of submissions discloses a basis for the award of indemnity costs in this case.  The court made no finding in relation to the evidence of the plaintiff which would justify judicial condemnation of his conduct in the form of an exceptional costs order.

4. Having reached this conclusion, counsel for the defendant invited the court to make an order under O 66 r 12 to remove the limit in relation to getting up case for trial.  In my view, the issues of fact between the parties were not of a proportion warranting an increase in the scale.

5. Finally, counsel for the defendant invited the court to apply the slip rule and make the following order:

   "The plaintiff do pay to the defendant interest on the sum of $1,400 pursuant to s 31 of the Supreme Court Act 1935 at the rate of 6% per annum from 28 February 1995 until judgment on 1 November 2002 such interest amounting to $630.35."

6. Counsel for the plaintiff consented to that order and I make the order accordingly.

7. Counsel for the defendant also invited the court to apply the slip rule in relation to the conclusion expressed in [81] of the reasons for judgment.  As stated, the pleadings and evidence in relation to this issue were not at all clear.  If the defendant wished to make submissions in relation to this issue of fact, it should have done so on 1 November 2002.  If there is power in the court to reconsider the issue, it should not now do so.

8. I shall hear counsel on the orders to be made.