TOWNSEND & ORS -v- COLLOVA & ORS [2005] WASC 4 (S)
| Link to Appeal : |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 4 (S) | |
| Case No: | CIV:1880/2001 | 2-8 APRIL, 19 AUGUST 2004, 22 & 28 FEBRUARY 2005 | |
| Coram: | LE MIERE J | 15/01/05 | |
| 18/03/05 | |||
| 21 | Judgment 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;… |
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- 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.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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