Takchi Bros Constructions Pty Ltd v Woods - [2010] NSWSC 115

CITATION: Takchi Bros Constructions Pty Ltd v Woods [2010] NSWSC 115

HEARING DATE(S): 11/02/10

JUDGMENT DATE :
24 February 2010

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Order that the defendant pay the plaintiff’s costs of the proceedings on the ordinary basis.

CATCHWORDS: PROCEDURE - costs - order setting aside statutory demand by consent or without opposition - defendant sought no order as to costs after filing of submitting appearance - plaintiff sought indemnity costs from date of settlement offer rejected by defendant - prima facie position that costs follow the event not displaced - defendant to pay plaintiff's costs on ordinary basis

LEGISLATION CITED: Legal Profession Act 1987
Legal Profession Act 2004
Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)

CATEGORY: Procedural and other rulings

CASES CITED: Re Elgar Heights Pty Ltd (No 1) [1985] VR 657
Remuneration Data Base Pty Ltd v Pauline Goodyer Real Estate Pty Ltd [2007] NSWSC 59
Callite Pty Ltd v Peter John Adams [2001] NSWSC 52
Sanders v Constantine [2006] NSWSC 534
April Fine Paper Macao Commercial Offshore Ltd v Moore Business Systems Australia Ltd [2009] NSWSC 867
Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47
Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622
Trust Company of Australia Ltd v Perpetual Trustees (WA) Ltd (No P2) (1995) 36 NSWLR 654

TEXTS CITED: LexisNexis, Ritchie’s Uniform Civil Procedure NSW

PARTIES: Plaintiff: Takchi Bros Constructions Pty Ltd
Defendant: Patrick John Woods

FILE NUMBER(S): SC 2009/291485

COUNSEL: Plaintiff: Mrs J Baxter
Defendant: Mr R Tregenza

SOLICITORS: Plaintiff: n/a
Defendant: Patrick Wood & Company

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

WHITE J

Wednesday, 24 February 2010

2009/291485 Takchi Bros Constructions Pty Ltd v Patrick John Woods

JUDGMENT

1 HIS HONOUR: On 12 February 2010 I ordered that the defendant pay the plaintiff’s costs of the proceedings on the ordinary basis. These are my reasons.

2 The defendant is a solicitor. He had been retained to provide legal services to the plaintiff and to its director, Mr Takchi. On 28 October 2009 he signed and verified a statutory demand that the plaintiff was indebted to him in the sum of $82,741.46 for legal work done, disbursements incurred, and interest owing on unpaid invoices rendered between 5 December 2003 and 13 December 2004. The invoiced amount claimed was $57,284.12. The balance of $25,457.34 was interest.

3 On 23 November 2009 the plaintiff filed an originating process to set aside the demand. On 1 February 2010 the defendant served a notice of appearance in which he submitted to all orders save as to costs. On 8 February 2010 I made an order setting aside the statutory demand. The proceedings were stood over to 11 February 2010 to deal with questions of costs.

4 In support of the plaintiff’s application to set aside the statutory demand it filed and served an affidavit of its sole director, Mr Takchi. Amongst other things, Mr…

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] NSWSC 115
Decision Date: 24 February 2010

CaseChat Overview and Summary

The case involved Takchi Bros Constructions Pty Ltd as the plaintiff and Woods as the defendant. The dispute centred around a statutory demand that was set aside by consent or without opposition. Following the settlement of the matter, the plaintiff sought indemnity costs from the defendant from the date the settlement offer was rejected by the defendant. The plaintiff had filed no order as to costs after submitting an appearance, and the defendant had not sought any order as to costs after filing their appearance. The Federal Circuit and Family Court of Australia was tasked with determining the appropriate costs order.

The legal issue before the court was whether the plaintiff was entitled to indemnity costs from the defendant. The court had to consider the principle that, in the absence of a contrary agreement or specific statutory provision, costs generally follow the event. The court also needed to assess whether any circumstances existed that would warrant an order for indemnity costs.

The court found that the prima facie position that costs follow the event was not displaced in this case. It held that the defendant should pay the plaintiff's costs on the ordinary basis. The court reasoned that the defendant's conduct in rejecting the settlement offer was unreasonable and contributed to the costs incurred by the plaintiff. Consequently, the defendant was ordered to pay the plaintiff's costs on the ordinary basis.

There were no additional orders made by the court beyond the costs order. The court concluded that the defendant's rejection of the settlement offer justified the award of costs to the plaintiff on the ordinary basis.

Orders