The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd
[2007] WASCA 257 (S)
•7 NOVEMBER 2007
THE PILBARA INFRASTRUCTURE PTY LTD -v- BGC CONTRACTING PTY LTD [2007] WASCA 257 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 257 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:125/2007 | 7 NOVEMBER 2007 | |
| Coram: | PULLIN JA BUSS JA NEWNES AJA | 6/11/07 | |
| 11/02/08 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Respondent to pay the appellant's costs of the appeal to be taxed Costs of original application be costs in the cause | ||
| B | |||
| PDF Version |
| Parties: | THE PILBARA INFRASTRUCTURE PTY LTD BGC CONTRACTING PTY LTD |
Catchwords: | Practice and procedure Costs Turns on own facts |
Legislation: | Nil |
Case References: | Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Unioil International Pty Ltd v Deloitte Touche Tomatsu (No 2) (1997) 18 WAR 190 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE PILBARA INFRASTRUCTURE PTY LTD -v- BGC CONTRACTING PTY LTD [2007] WASCA 257 (S) CORAM : PULLIN JA
- BUSS JA
NEWNES AJA
DECISION : 12 FEBRUARY 2008 FILE NO/S : CACV 125 of 2007 BETWEEN : THE PILBARA INFRASTRUCTURE PTY LTD
- Appellant
AND
BGC CONTRACTING PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : TEMPLEMAN J
Citation : BGC CONTRACTING PTY LTD -v- THE PILBARA INFRASTRUCTURE PTY LTD [2007] WASC 200
File No : CIV 1783 of 2007
(Page 2)
Catchwords:
Practice and procedure - Costs - Turns on own facts
Legislation:
Nil
Result:
Respondent to pay the appellant's costs of the appeal to be taxed
Costs of original application be costs in the cause
Category: B
Representation:
Counsel:
Appellant : Mr C L Zelestis QC & Mr M Van Brakel
Respondent : Mr C G Colvin SC & Mr D J Marsh
Solicitors:
Appellant : Clayton Utz
Respondent : Hotchkin Hanly
Case(s) referred to in judgment(s):
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Unioil International Pty Ltd v Deloitte Touche Tomatsu (No 2) (1997) 18 WAR 190
(Page 3)
1 JUDGMENT OF THE COURT: The appeal having been decided in favour of the appellant, the parties are now in dispute in relation to the subject of costs. The appellant seeks an order that the respondent pay the appellant's costs of the proceedings before Templeman J and the costs of the appeal. The appellant also seeks an order that such costs be taxed on an indemnity basis. The respondent on the other hand, seeks an order that the appellant pay the respondent's costs of the proceedings at first instance and of the appeal, or alternatively, that costs be in the cause.
2 The litigation occurred because the appellant's solicitors filed a memorandum of appearance containing the wrong file number. As a result, the memorandum of appearance was not placed on the file concerning the writ which the respondent had issued. The respondent entered judgment by default not knowing the appellant's solicitors had filed an appearance with the wrong number, although they were aware of the appellant's intention to enter an appearance and had been given a copy of the proposed memorandum of appearance. The judgment was regularly entered and the appellant only succeeded in having the judgment set aside because the court exercised its discretion under O 2 in relation to the irregularity in the memorandum of appearance. This court has concluded that there was a genuine dispute between the parties concerning their contractual dealings. The issues between them should not have been resolved summarily.
3 The failure to enter an appearance in correct form was not the fault of the respondent. The irregularity in the appearance was not caused by any conduct on the part of the respondent. The effect of the Court of Appeal's order and its reasons was to set aside an otherwise regular judgment in default of appearance by curing the defect in the memorandum of appearance. The respondent points to the common form order 13 which is included in Butterworths, Civil Procedure Western Australia, which suggests that the usual costs order made is that the party who obtains the order setting aside judgment must pay the costs of the application. However, this case is unusual because the respondent's solicitors had been told that the appellant intended to enter an appearance and had been given a copy of the proposed memorandum, the respondent knew this was the appellant's intention before entering default judgment, the respondent was only able to enter judgment because of a minor error in the memorandum of appearance and the circumstances reveal that there was a genuine dispute between the parties. In the circumstances, the appropriate order for costs in relation to the proceedings and all applications dealt with by Justice Templeman, should be that costs be in the cause.
(Page 4)
4 In relation to the appeal, the appellant succeeded and there seems to be no reason why the usual order should not be made; that is, that costs follow the event. As a result, the respondent should pay the appellant's costs of the appeal, including the application for expedition and the application for leave to adduce additional evidence.
5 The appellant seeks an order for indemnity costs. The court has a discretion to order that costs be paid on an indemnity basis. See Unioil International Pty Ltd v Deloitte Touche Tomatsu (No 2) (1997) 18 WAR 190, 191; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233. An indemnity costs order will only be made if justified by some special or unusual feature of the particular case justifying such an order. See Colgate-Palmolive at 232 - 234. The conduct of the parties as litigants is to be considered when considering whether to make an order for indemnity costs.
6 The appellant points to observations in Colgate-Palmolive,233 - 234 and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 401, which indicate that when it appears that an action has been commenced or continued in circumstances where the applicant properly advised, should have known that he or she had no chance of success, the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of known facts, or the clearly established law and in those circumstances, indemnity costs should be considered. Those conditions do not apply here.
7 The respondent did not know that the appellant's solicitors had filed the defective memorandum of appearance. Having obtained the default judgment, the respondent was entitled to leave it to the court to make a decision about whether the judgment should be set aside. Having obtained judgment in its favour from Templeman J, the respondent was entitled to seek to argue that the appeal should be dismissed. With the benefit of a judgment of the Supreme Court in its favour, the respondent cannot be accused of having some ulterior motive, or wilfully disregarding the facts or the law in seeking to support the judgment.
8 As a result, the appropriate orders are:
1. The costs of the application for an injunction filed and heard on 14 August 2007, and the application to set aside default judgment filed 16 August 2007 and heard on 22 August 2007 in action CIV 1783 of 2007, should be costs in the cause.
(Page 5)
- 2. The respondent pay the appellant's costs of the appeal (including any interlocutory application) to be taxed.
3. There should be a certificate for second counsel.
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