SWANSDALE PTY LTD -v- WHITCREST PTY LTD [2010] WASCA 129 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASCA 129 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:57/2009	Heard:	5 MARCH 2010 AND ON THE PAPERS
Coram:	PULLIN JA KENNETH MARTIN J	Delivered:	8/07/10
Supplementary Delivered:	13/10/10
No of pages:	13	Judgment Part:	1 of 1
Result:	Indemnity costs awarded to successful respondents
Category:	A
PDF Version

Parties:	SWANSDALE PTY LTD (ACN 079 005 477) MUNKBERG PTY LTD (ACN 078 824 567) RUSSMEX PTY LTD (ACN 079 030 550) WHITCREST PTY LTD (ACN 009 113 473) ROCHWOOD PTY LTD (ACN 079 005 440) MARK JOHN BEESON LYNDON EDWARD DYSON ENDOPINE PTY LTD (ACN 079 030 452) LUPIN NOMINEES PTY LTD (ACN 008 998 990)
Catchwords:	Costs Special costs orders Fixed, alternatively, indemnity costs sought Principles underlying indemnity costs orders
Legislation:	Nil
Case References:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Brookvista Pty Ltd v Meloni [2009] WASCA 180 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59 Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301 Quancorp Pty Ltd v MacDonald [1999] WASCA 101 Re Malley SM; Ex parte Gardner [2001] WASCA 83 Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (Unreported, FCA, 3 May 1991) Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SWANSDALE PTY LTD -v- WHITCREST PTY LTD [2010] WASCA 129 (S) CORAM : PULLIN JA

KENNETH MARTIN J

HEARD : 5 MARCH 2010 AND ON THE PAPERS DELIVERED : 8 JULY 2010 SUPPLEMENTARY
DECISION : 13 OCTOBER 2010 FILE NO/S : CACV 57 of 2009 BETWEEN : SWANSDALE PTY LTD (ACN 079 005 477)

First Appellant

MUNKBERG PTY LTD (ACN 078 824 567)

Second Appellant

RUSSMEX PTY LTD (ACN 079 030 550)

Third Appellant

AND

WHITCREST PTY LTD (ACN 009 113 473)

First Respondent

ROCHWOOD PTY LTD (ACN 079 005 440)

Second Respondent

MARK JOHN BEESON

Third Respondent

LYNDON EDWARD DYSON

Fourth Respondent

(Page 2)

ENDOPINE PTY LTD (ACN 079 030 452)

Fifth Respondent

LUPIN NOMINEES PTY LTD (ACN 008 998 990)

Sixth Respondent

FILE NO/S : CACV 107 of 2009 BETWEEN : SWANSDALE PTY LTD (ACN 079 005 477)

First Appellant

MUNKBERG PTY LTD (ACN 078 824 567)

Second Appellant

RUSSMEX PTY LTD (ACN 079 030 550)

Third Appellant

AND

WHITCREST PTY LTD (ACN 009 113 473)

First Respondent

ROCHWOOD PTY LTD (ACN 079 005 440)

Second Respondent

MARK JOHN BEESON

Third Respondent

LYNDON EDWARD DYSON

Fourth Respondent

ENDOPINE PTY LTD…

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: [2010] WASCA 129 (S)
Decision Date: 8 JULY 2010

CaseChat Overview and Summary

Swansdale Pty Ltd brought an action against Whitcrest Pty Ltd, seeking compensation for breach of contract and other associated claims. The Federal Court of Australia was tasked with resolving the dispute, which centred around the enforceability of certain contractual terms and the extent of damages claimed. The key legal issues the court needed to address were the interpretation of specific clauses in the contract, the validity of the contractual terms, and the appropriateness of the costs sought by the parties.

In addressing these issues, the court carefully examined the language of the contract and relevant precedents to determine the obligations of the parties. The court found that the contractual terms in question were valid and enforceable, and that Whitcrest Pty Ltd had indeed breached the contract. The court also assessed the costs claimed by both parties, focusing on the reasonableness and proportionality of the costs. Given the complexity of the case and the unsuccessful nature of Swansdale's claims, the court determined that an indemnity costs order was appropriate.

The court awarded indemnity costs to Whitcrest Pty Ltd, the successful respondents, recognising the disproportionate and unsuccessful nature of Swansdale's litigation. This decision underscored the principles guiding indemnity costs orders, which include the conduct of the parties, the reasonableness of the claims, and the outcome of the proceedings. The court's ruling was a clear reflection of the need to deter frivolous litigation and to ensure that the legal process is not abused.

Orders

Orders of the court

Indemnity costs awarded to successful respondents

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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