TODD -v- NOVOTNY & ANOR [1999] WASC 219

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 219
Case No:	CIV:2281/1996	Heard:	28 OCTOBER 1999
Coram:	MASTER SANDERSON	Delivered:	9/11/99
No of pages:	9	Judgment Part:	1 of 1
Result:	Costs order varied
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Parties:	ROBERT JOSEPH TORRANCE TODD MICHAEL NOVOTNY BACKLOAD PTY LTD (ACN 009 451 192)
Catchwords:	Practice and procedure Variation of costs order made after application for third party discovery Turns on its own facts
Legislation:	Nil
Case References:	Esther Investments Pty Ltd v Markelinga Pty Ltd (1992) 8 WAR 400 Jones v Dunkel (1959) 101 CLR 298 Tipperary Developments Pty Ltd v State of Western Australia (1996) 22 ACSR 241 Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381 Biltoft Holdings Pty Ltd v Casselan Pty Ltd, unreported; SCt of WA (Anderson J); Library No 940252; 20 May 1994 Craig v Kanssen [1943] KB 256 Douglas-Hill v Parke Davis Pty Ltd (1990) 54 SASR 346 Gould v Vaggelas (1985) 157 CLR 215 Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 Midalco Pty Ltd v Simpson, unreported; SCt of WA; Library No 6747; 5 June 1987 Middleton v Western Australia (1996) 17 WAR 201 Monaco v Arnedo Pty Ltd, unreported; SCt of WA; Library No 940695; 29 November 1994 Mount Lawley Pty Ltd v Western Australian Planning Commission, unreported; SCt of WA (Master Bredmeyer); Library No 990132; 19 March 1999 Stowe v Stowe, unreported; SCt of WA; Library No 950556; 16 October 1995

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : TODD -v- NOVOTNY & ANOR [1999] WASC 219 CORAM : MASTER SANDERSON HEARD : 28 OCTOBER 1999 DELIVERED : 9 NOVEMBER 1999 FILE NO/S : CIV 2281 of 1996 BETWEEN : ROBERT JOSEPH TORRANCE TODD

Plaintiff

AND

MICHAEL NOVOTNY

First Defendant

BACKLOAD PTY LTD (ACN 009 451 192)

Second Defendant

Catchwords:

Practice and procedure - Variation of costs order made after application for third party discovery - Turns on its own facts

Legislation:

Nil

Result:

Costs order varied

(Page 2)

Representation:

Counsel:

Plaintiff : Mr N P Gentilli

First Defendant : Mr P Redding

Second Defendant : Mr P Redding

Solicitors:

Plaintiff : Jackson McDonald

First Defendant : Williams & Hughes

Second Defendant : Williams & Hughes

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

Esther Investments Pty Ltd v Markelinga Pty Ltd (1992) 8 WAR 400
Jones v Dunkel (1959) 101 CLR 298
Tipperary Developments Pty Ltd v State of Western Australia (1996) 22 ACSR 241

Case(s) also cited:

Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381
Biltoft Holdings Pty Ltd v Casselan Pty Ltd, unreported; SCt of WA (Anderson J); Library No 940252; 20 May 1994
Craig v Kanssen [1943] KB 256
Douglas-Hill v Parke Davis Pty Ltd (1990) 54 SASR 346
Gould v Vaggelas (1985) 157 CLR 215
Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627
Midalco Pty Ltd v Simpson, unreported; SCt of WA; Library No 6747; 5 June…

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.

Continue reading Todd v Novotny

Details

AGLC: Todd v Novotny [1999] WASC 219
Case: [1999] WASC 219
Decision Date

CaseChat Overview and Summary

The case of Todd v Novotny involved a dispute between Robert Joseph Torrance Todd (the plaintiff) and Michael Novotny (the first defendant) and Backload Pty Ltd (the second defendant) in the Supreme Court of Western Australia. The plaintiff sought a variation of a costs order made after an application for third-party discovery. The court was required to decide whether the order should be varied and, if so, what the appropriate variation should be. The primary issue was whether the defendants' initial discovery was adequate, and if not, whether the plaintiff should bear the costs of the third-party discovery. The court found that the defendants' initial discovery was inadequate, and as a result, the plaintiff had to seek discovery from a third party, Luke John Martino. The court concluded that the defendants should bear the costs of the third-party discovery as they failed to provide proper discovery in the first instance.

The court, Master Sanderson, ruled that the order for costs should be varied. The court found that the defendants had the necessary documents in their possession but failed to provide them during the initial discovery. The court also found that had the defendants provided proper discovery, the plaintiff's discovery from Martino would have been significantly reduced, and the costs would have been lower. The court concluded that it was appropriate to vary the order for costs and that the defendants should bear the consequences of not providing proper discovery in the first instance. The court also decided to vary the order as it would avoid unnecessary duplication of arguments before the trial Judge and was well-placed to deal with the cost question.

Orders