THE PILBARA INFRASTRUCTURE PTY LTD -v- BGC CONTRACTING PTY LTD [2007] WASCA 257 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 257 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:125/2007	Heard:	7 NOVEMBER 2007
Coram:	PULLIN JA BUSS JA NEWNES AJA	Delivered:	6/11/07
Supplementary Delivered:	11/02/08
No of pages:	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
Category:	B
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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

HEARD : 7 NOVEMBER 2007 DELIVERED : 7 NOVEMBER 2007 SUPPLEMENTARY
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…

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: [2007] WASCA 257 (S)
Decision Date: 7 NOVEMBER 2007

CaseChat Overview and Summary

The Pilbara Infrastructure Pty Ltd (the appellant) appealed against the decision of the respondent, BGC Contracting Pty Ltd, in the Federal Circuit and Family Court of Australia. The primary dispute concerned the entitlement to costs incurred in the proceedings, with the appellant arguing that it should be awarded costs on the standard basis and that the respondent should pay those costs. The respondent contested this, arguing that the costs should be assessed on the indemnity basis.

The central legal issue before the court was whether the appellant was entitled to be awarded costs on the standard basis. The court considered whether the appeal was successful to the extent that the appellant deserved costs on the standard basis, or whether the appeal was only partially successful, thereby warranting indemnity costs. The court also examined whether the appeal was frivolous, vexatious, or an abuse of process, which could have impacted the costs order.

The court found that the appeal was successful to a significant extent, warranting costs on the standard basis. The appeal was not found to be frivolous, vexatious, or an abuse of process. Consequently, the court ruled that the respondent should pay the appellant's costs of the appeal. Additionally, the costs of the original application were to be costs in the cause. This decision underscored the importance of the specific circumstances of each case in determining the appropriate costs order.

Orders

Orders of the court

Respondent to pay the appellant's costs of the appeal to be taxed

Costs of original application be costs in the cause

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.