Trafalgar West Investments Pty Ltd as trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 7]
[2015] WASC 280 (S)
•2 OCTOBER 2015
TRAFALGAR WEST INVESTMENTS PTY LTD AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [No 7] [2015] WASC 280 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 280 (S) | |
| Case No: | COR:59/2011 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 2/10/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Defendants pay forthwith the plaintiff's taxed costs of the application and cross-application | ||
| B | |||
| PDF Version |
| Parties: | TRAFALGAR WEST INVESTMENTS PTY LTD AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST SUPERIOR LAWNS AUSTRALIA PTY LTD KINGSLEY CRAIG FLUGGE MARGARET FLUGGE JEROME MATTHEW FLUGGE LINLEY FLUGGE DAMIEN CRAIG FLUGGE |
Catchwords: | Application for leave to amend originating process Application opposed Cross-application brought to strike out statement of claim Allowance of amendment to originating process on terms preserving limitation rights Crossapplication to strike out dismissed Dispute over costs Determination on the basis of written submissions Turns on own facts |
Legislation: | Nil |
Case References: | Hewitt v Henderson [2006] WASCA 233 Stanley v Layne Christensen Company [2006] WASCA 56 Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Pty Ltd [No 7] [2015] WASC 280; (2015) 107 ACSR 575 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : TRAFALGAR WEST INVESTMENTS PTY LTD AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [No 7] [2015] WASC 280 (S) CORAM : KENNETH MARTIN J HEARD : ON THE PAPERS DELIVERED : 2 OCTOBER 2015 FILE NO/S : COR 59 of 2011 BETWEEN : TRAFALGAR WEST INVESTMENTS PTY LTD AS TRUSTEE FOR THE TRAFALGAR WEST INVESTMENTS TRUST
- Plaintiff
AND
SUPERIOR LAWNS AUSTRALIA PTY LTD
First Defendant
KINGSLEY CRAIG FLUGGE
Second Defendant
MARGARET FLUGGE
Third Defendant
JEROME MATTHEW FLUGGE
Fourth Defendant
LINLEY FLUGGE
Fifth Defendant
DAMIEN CRAIG FLUGGE
Sixth Defendant
Catchwords:
Application for leave to amend originating process - Application opposed - Cross-application brought to strike out statement of claim - Allowance of amendment to originating process on terms preserving limitation rights - Crossapplication to strike out dismissed - Dispute over costs - Determination on the basis of written submissions - Turns on own facts
Legislation:
Nil
Result:
Defendants pay forthwith the plaintiff's taxed costs of the application and cross-application
Category: B
Representation:
Counsel:
Plaintiff : No appearance (on the papers)
First Defendant : No appearance (on the papers)
Second Defendant : No appearance (on the papers)
Third Defendant : No appearance (on the papers)
Fourth Defendant : No appearance (on the papers)
Fifth Defendant : No appearance (on the papers)
Sixth Defendant : No appearance (on the papers)
Solicitors:
Plaintiff : Corrs Chambers Westgarth
First Defendant : Bennett + Co
Second Defendant : Bennett + Co
Third Defendant : Bennett + Co
Fourth Defendant : Bennett + Co
Fifth Defendant : Bennett + Co
Sixth Defendant : Bennett + Co
Case(s) referred to in judgment(s):
Hewitt v Henderson [2006] WASCA 233
Stanley v Layne Christensen Company [2006] WASCA 56
Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Pty Ltd [No 7] [2015] WASC 280; (2015) 107 ACSR 575
1 KENNETH MARTIN J: My interlocutory, reserved reasons on this opposed application by the plaintiff to amend its originating process and to resist the cross-application of the defendant to strike out the latest iteration of the plaintiff's statement of claim were delivered on 5 August 2015: see Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Pty Ltd [No 7] [2015] WASC 280; (2015) 107 ACSR 575.
2 Those reasons span 37 pages - reflecting the intensively opposed character of the application of the plaintiff seeking leave to amend and a necessary determination of a cross-application brought by the defendants to strike out.
3 At the conclusion of those reasons I attempted to assist the parties by providing a prima facie indication of a position concerning the costs of the opposed application. I said at [114]:
The costs of this application for leave to amend the plaintiff's originating process should be borne by the defendants, in circumstances where, as I have pointed out in the reasons above, it is not appropriate to deprive a party of a cause of action on the basis of a limitation of action impediment at an interlocutory level, unless positively crystal clear - and it is not clear in the presenting case. Though, as expressly noted, the defendants will retain any rights presently held to raise any limitation defences at a later stage (presumably at trial), the plaintiff as the successful party upon this application should receive its costs of the opposed application for leave, to be taxed if not agreed.
4 Whilst the plaintiff was content with a costs order in terms I had foreshadowed, the defendants were not. Through their solicitors, the defendants have sought to be heard further on costs to submit that the appropriate costs order should be that the costs of Trafalgar's application to amend its originating process be in the cause, or alternatively be reserved for trial.
5 Hence, a disputed costs outcome position concerning this interlocutory application needs to be resolved.
6 The parties agreed to file and exchange written submissions. To that end, I now have the defendants' written submissions on costs of 14 August 2015, responded to by the plaintiff's written submissions on costs of 21 August 2015.
7 The defendants' submissions contend, in essence, that by the application seeking leave to amend its originating process; that Trafalgar was seeking an indulgence from the court; that the defendants' cross-strikeout application was merely consequential to the opposition to leave to amend the originating process application; that Trafalgar ordinarily would be required to pay the defendants' costs thrown away as a consequence of amendments sought to be introduced under the most recent amendments to its statement of claim (the REASSOC); that the defendants did not unreasonably oppose Trafalgar's application; and that Trafalgar's application for leave to amend its originating process had been seeking unconditional leave and was not made on the basis that all the defendants' limitation of action rights (if any) were to be preserved. They point out, finally, that leave to amend was only granted on the basis of the express preservation of the defendants' limitation defences (if any).
8 The defendants' submissions draw the Court's attention to observations made in Stanley v Layne Christensen Company [2006] WASCA 56 [52] - [55] (Wheeler JA, Steytler P & Pullin JA agreeing). There is no need to revisit those observations which, albeit drawn to my attention under the defendants' submissions, present as well known and entirely orthodox principles concerning a parties' costs entitlements in the wake of an amendment to a party's originating process, or to a pleading which requires the court's leave.
9 Drawing upon Stanley, the defendants' submissions, at par 3, then advance to contend that there is nothing in that decision which 'supports a general proposition that a party requiring leave to amend a writ or pleading should have their costs of successfully applying for leave, simply because they were successful on a contested application for leave'. That observation is correct, but it is not this case. The submission ignores the scale of the resistance put up against the leave application when the resistance fails. By reference to a conferral affidavit sworn by a solicitor acting on the part of the defendants' solicitors (see A J Tharby's affidavit, affirmed 23 April 2015), reference is made to the process of extensive conferral prior to the application and then contending for the defendants' self-assessed, 'reasonable conduct'.
10 The written submissions then draw my attention to aspects of my reasons at [9]. The defendants point to the fact that 'Trafalgar on its own case, accepted that its conduct had caused the need for the application'. I pause to again observe that so much may readily be accepted, but the proposition only really recounts the beginnings of a battle, rather than the conduct of the battle itself, as regards an unsuccessful tactical stance deployed by the defendants in opposing the application for leave and the sheer magnitude of that opposition, involving the extensive exchanges of opposing written submissions and then a significant amount of oral argument from counsel.
11 In the end, the defendants' opposition to leave to amend failed, as did its correlative cross-application to strike out the plaintiffs' REASSOC. The battle was lost.
12 The defendants' submission under par 6 is in the following terms:
The issues arising from the application including whether the effect of the amendment to the originating process had retrospective effect and the preservation of the defendants' right to plead a Limitation defences (sic) were matters which:
6.1 had to be justified to the satisfaction of a judicial officer; and
6.2 substantially increased the size and scope of the claims in dispute.
13 Towards this submission, I observe that the contention concerning justification to the satisfaction of a judicial officer is a misconception. Had the defendants on this application not actively opposed the application for leave to amend, or even implemented a strategy by which the scale of opposition was less in its dimension than turned out to be the case, then the costs outcome position in the wake of the defendants' failure may have been different. Arguments about the substantial increase in the size and scope of the claims in dispute is also not a governing criteria to sustain or rationalise the basis for failed opposition - predicated upon raising limitation of action arguments which at the interlocutory level were then assessed (applying orthodox principles) to be premature to evaluate. The suggestion in the defendants' costs submissions, that Trafalgar was seeking unconditional leave on a basis which did not recognise the entitlement of the defendants to preserve their limitation rights, is also not, on my assessment, correct. I did not assess Trafalgar to be proceeding on that basis. I reiterate par [42] of my reasons, by reference to par 7 of Trafalgar's written submissions of 18 May 2015 and my observations which followed those submissions in italics concerning Hewitt v Henderson [2006] WASCA 233:
Returning to Trafalgar's written submissions, they assert at par 7:
7. It may be open to the defendants to plead, by way of defence, that no cause of action exists or is statute barred. That is the matter for [the] defence: not a strike out application: see Hewitt v Henderson [2006] WASCA 233, per Buss JA at [30]. In that regard, it cannot be said that the plaintiff's prospects of establishing the existence of such an asset at trial is 'hopeless'. [My note: In the end, as I explain, I accept this submission, albeit Hewitt v Henderson addressed the former Limitation Act 1935(WA). The same principles apply, however, in my view.]
15 Here the stance of the rival party defendants was to unleash a rigorous campaign of opposition, both on paper and verbally opposing leave and, indeed, to bring a cross-application by way of a pleading strikeout application. That strategic opposition manoeuvre significantly 'upped the ante' upon what was an unnecessary interlocutory fight of that scale. The tactical decision elevated what might otherwise have been a routine application for leave to a full-blown fight requiring 37 pages of reasons to resolve. As the plaintiff correctly articulates in its written outline of submissions:
5. In short, what should have been a simple application (for which any costs reasonably incurred would have been paid by the plaintiff) turned into a full blown attack by the defendants as to the substance (not the form) of various paragraphs of the RASSOC. If a defendant to proceedings wishes to turn what is otherwise a straightforward application into a complicated one, and fails in its endeavour, it should bear the consequences of its actions.
…
10. The defendants' refusal to consent to the amendments and to persist with their cross-application was unreasonable in circumstances were (sic) it had been pointed out in writing on no less than three occasions that the limitation issues raised were not susceptible to interlocutory determination. The parties have been put to unnecessary cost in preparing for and attending a contested hearing for leave to amend the originating process and the defendants' strikeout application.
…
13. The appropriate order in relation to costs is that the defendants pay the plaintiff's costs of the application and cross-application to be taxed if not agreed and payable forthwith.
16 By my assessment, the plaintiff's submissions concerning costs for this application are irresistible and must be accepted.
17 Accordingly, the appropriate order concerning the costs of this application will be in accord with par 13 of the plaintiff's submissions set out above. An order in those terms will issue upon the publication of these reasons.
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