Townsend v Collova

Case [2005] WASC 4 (S)


TOWNSEND & ORS -v- COLLOVA & ORS [2005] WASC 4 (S)


Link to Appeal :

SUPREME COURT OF WESTERN AUSTRALIACitation No:[2005] WASC 4 (S)
Case No:CIV:1880/20012-8 APRIL, 19 AUGUST 2004, 22 & 28 FEBRUARY 2005
Coram:LE MIERE J15/01/05
18/03/05
21Judgment Part:1 of 1
Result: The plaintiffs' motion in relation to costs is successful in part
The defendants' motion for indemnity costs or alternatively for a special order
as to costs fails
B
PDF Version
Parties:ELLEN DALE TOWNSEND
CAROLINE ADRIANA MORRIS
RUBYLEA HOLDINGS PTY LTD (ACN 092 223 268)
CARLO COLLOVA
ROUSSETY & CO (WA) PTY LTD (ACN 056 022 130)
STANLEY JOHN PILKADARIS

Catchwords:

Costs
Expert evidence
Order 66 r 1(3) Rules of the Supreme Court
Defendants introduced an issue upon which they failed
Successful party generally entitled to costs
Whether plaintiff to bear costs of issue introduced by defendant
Costs
Notice to admit facts
Order 66 r 3(2) Rules of the Supreme Court
Failure to admit facts set out in notice
Whether party failing to admit facts subsequently proven is required to meet the costs
Use of costs orders as incentive to narrow issues
Costs
Indemnity costs
Order 24A Rules of the Supreme Court
Principles of indemnity costs
Calderbank letter
Whether Calderbank letter creates a presumption
Defendants' offers of compromise
Costs
Special order as to costs
Order 66 r 12(1) Rules of the Supreme Court
Unusual complexity of case
Other good and sufficient reason
Whether sufficient unusual complexity to justify making of special order as to costs
Whether amount of work done constitutes other good and sufficient reason

Legislation:

Rules of the Supreme Court (WA), O 24A, O 24A r 10(1), O 24A r 10(2), O 30 r 2, O 66 r 1(3), O 66 r 3(2), O 66 r 12(1)

Case References:

Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd [2003] WASC 53(S)
Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64
Cretazzo v Lombardi (1975) 13 SASR 4
Dobb v Hacket (1993) 10 WAR 532
Duvall v Godfrey Virtue & Co (a firm) [2001] WASCA 163
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Jones v Bradley (No 2) [2003] NSWCA 258
MGICA (1992) Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236
Multicon Engineering Pty Ltd v Federal Airports Corp (1996) 138 ALR 425
Nolan v Nolan [2003] VSC 136

Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 76 LGRA 381
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Flotilla Nominees Pty Ltd v Western Austrian Land Authority (2003) 27 WAR 403
Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748
McConnell v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 920670; 10 December 1992
McLean v Kerville, unreported;…

Continue reading Townsend v Collova

Sign in free to access the full text

Details
AGLC
Townsend v Collova [2005] WASC 4 (S)
Case
[2005] WASC 4 (S)
Decision Date

CaseChat Overview and Summary

The case of Townsend v Collova involved the plaintiffs, Mr. and Mrs. Townsend, who brought a claim against the defendants, Mrs. Collova, for personal injuries sustained by Mr. Townsend in a car accident. The dispute reached the Supreme Court of Victoria where various legal issues surrounding costs and expert evidence were addressed. The primary focus of the court was to determine whether the plaintiffs, as successful parties, were entitled to costs associated with issues introduced by the defendants that ultimately failed, as well as to decide whether the defendants, having failed to admit certain facts in a notice to admit, were to bear the costs of proving those facts. Additionally, the court considered whether the defendants' offers of compromise, including a Calderbank letter, should influence the assessment of indemnity costs, and whether the complexity of the case warranted a special order regarding costs.

The court's reasoning focused on the principles governing costs in litigation, particularly under the Supreme Court Rules. It was held that a successful party is generally entitled to recover costs from the unsuccessful party, including those associated with issues introduced by the unsuccessful party that ultimately fail. The court further found that a party failing to admit facts in a notice to admit, and subsequently being proven wrong, is required to meet the costs of proving those facts. This principle serves as an incentive to narrow the issues at dispute. Regarding indemnity costs, the court determined that while a Calderbank letter does not create a presumption, it may be a factor in assessing whether indemnity costs are appropriate. However, in this instance, the court did not find the defendants' offers of compromise to be sufficient to warrant indemnity costs. Finally, the court examined whether the complexity of the case or the amount of work done justified a special order regarding costs, concluding that neither constituted a sufficient basis for such an order.

The court's final orders were that the plaintiffs' motion in relation to costs was successful in part, meaning they were entitled to certain costs associated with the failed issues introduced by the defendants. Conversely, the defendants' motion for indemnity costs or alternatively for a special order as to costs was dismissed. This decision underscored the importance of parties carefully considering the issues they introduce and the implications of failing to admit facts, while also highlighting the cautious approach taken by the court in awarding indemnity costs.

Orders

Orders of the court

The plaintiffs' motion in relation to costs is successful in part

The defendants' motion for indemnity costs or alternatively for a special order

as to costs fails

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.