Topseal Concrete Services Pty Ltd v Sika Australia Pty Ltd
[2008] WASC 57 (S)
TOPSEAL CONCRETE SERVICES PTY LTD -v- SIKA AUSTRALIA PTY LTD [2008] WASC 57 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 57 (S) | |
| Case No: | CIV:1325/2008 | 10 APRIL 2008 & ON THE PAPERS | |
| Coram: | BEECH J | 10/04/08 | |
| 2/05/08 | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff to pay defendant's costs of the application fixed at $9,300 | ||
| B | |||
| PDF Version |
| Parties: | TOPSEAL CONCRETE SERVICES PTY LTD (ACN 081 000 777) SIKA AUSTRALIA PTY LTD (ACN 001 342 329) |
Catchwords: | Costs Application for interlocutory injunction is dismissed Whether costs should be in the cause or paid by unsuccessful party Turns on own facts |
Legislation: | Nil |
Case References: | Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 2 MAY 2008 FILE NO/S : CIV 1325 of 2008 BETWEEN : TOPSEAL CONCRETE SERVICES PTY LTD (ACN 081 000 777)
- Plaintiff
AND
SIKA AUSTRALIA PTY LTD (ACN 001 342 329)
Defendant
Catchwords:
Costs - Application for interlocutory injunction is dismissed - Whether costs should be in the cause or paid by unsuccessful party - Turns on own facts
Legislation:
Nil
Result:
Plaintiff to pay defendant's costs of the application fixed at $9,300
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : Murcia Pestell Hillard
Defendant : Deacons
Case(s) referred to in judgment(s):
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190
(Page 3)
1 BEECH J: On 10 April 2008 I heard an application by the plaintiff for interlocutory injunctions. On that day I dismissed the application. At the request of the parties I ordered that they file written submissions in relation to the question of costs.
2 The defendant seeks orders that the plaintiff should pay the defendant's costs of the application, payable forthwith, and that such costs should be taxed on an indemnity basis.
3 The plaintiff submits the appropriate order is that the costs of the application be costs in the cause.
4 In my opinion, for the reasons which follow, the appropriate costs order is that the plaintiff pay the defendant's costs of the application fixed at $9,300.
5 The plaintiff submits that a very common order on the grant or dismissal of an injunction is that the costs of the application be in the cause. I accept that that is so. However, in the circumstances of this case I consider that a different order is appropriate.
6 In determining the appropriate costs order upon the refusal of an interlocutory injunction, it is obviously necessary to have regard to the grounds for the refusal of the injunction application. For example, where an applicant for an injunction establishes a prima facie case (in the sense used in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57), but where the injunction is declined on grounds of balance of convenience or other discretionary grounds, it will often, if not usually, be appropriate to order that costs be in the cause or be reserved to the trial judge.
7 However, in this case the plaintiff failed to put before the court material establishing a prima facie case in respect of any of the claims which, the plaintiff contended, provided a foundation for the interlocutory injunctions sought. Further, there were significant problems with the form of interlocutory injunctive orders sought by the plaintiffs. The plaintiff sought interlocutory injunctions for a period of one week, requiring full argument in respect of the application in circumstances where the utility of ordering the injunctions for one week only was not immediately apparent. In these circumstances, it seems to me to be appropriate to order that the plaintiff pay the defendant's costs of the application.
(Page 4)
8 The defendant seeks an order that the plaintiff pay the defendant's costs on an indemnity basis.
9 An order for indemnity costs will be made only if there is some special or unusual feature in the case which justifies a departure from the ordinary practice of awarding costs on a party-party basis: Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190, 191; Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [8].
10 The categories of cases in which the discretion to award indemnity costs may be exercised are not closed: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 233 - 234; Unioil (191). Most of the situations in which indemnity costs have been awarded have involved an element of improper or unreasonable conduct on the part of the parties or their advisors in the conduct of the case: Flotilla [9]; Colgate-Palmolive (233 - 234).
11 I am not satisfied that the matters referred to in the defendant's submissions, individually or when taken together, justify an order for indemnity costs in this matter. The strength (or otherwise) of the plaintiff's case and plaintiff's conduct in seeking interlocutory injunctions for a duration of only one week, and in seeking an urgent hearing, are matters I take into account in ordering that the plaintiff pay the costs of the application rather than following the common course of ordering costs in the cause. I am not satisfied that these circumstances call for an order for indemnity costs.
12 In accordance with the current practice of the court it seems to me to be appropriate to fix the amount of the costs and to order that the costs be payable forthwith.
13 In the event that costs were payable on a party-party basis the defendant sought that costs be fixed in the maximum amount allowed under the scale, namely $9,300. Taking into account the length of the hearing and the affidavits and submissions filed by the defendants, I am satisfied that it is appropriate to fix the costs in that sum.
14 Accordingly, I order that the plaintiff pay the defendant's costs of the application, fixed in the sum of $9,300 and payable forthwith.
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