UTA Pty Ltd v Celenza

[2002] WASCA 360 (S)

UTA PTY LTD -v- CELENZA & ANOR [2002] WASCA 360 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 360 (S)
Court:	THE FULL COURT (WA)
Case No:	FUL:69/2002	Heard:	11 OCTOBER 2002
Coram:	TEMPLEMAN J ROBERTS-SMITH J	Delivered:	20/12/02
Supplementary Delivered:	31/03/04
No of pages:	5	Judgment Part:	1 of 1
Result:	Appellant pay respondent costs of appeal
Category:	B
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Parties:	UTA PTY LTD MARK PETER CELENZA PETER CLEMENT MOORE
Catchwords:	Costs Appellant successful in showing error Respondent successful in any event No absolute rule costs follow event No absolute rule successful party never bears costs of unsuccessful party In present case costs follow event
Legislation:	Nil
Case References:	Oshlack v Richmond River Council (1998) 193 CLR 72 Brownsville Nominees Pty Ltd v FCT (1988) 15 ALD 749 Rosniak v SGIO (1997) 41 NSWLR 608

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : UTA PTY LTD -v- CELENZA & ANOR [2002] WASCA 360 (S) CORAM : TEMPLEMAN J

ROBERTS-SMITH J

HEARD : 11 OCTOBER 2002 DELIVERED : 20 DECEMBER 2002 SUPPLEMENTARY
DECISION : 31 MARCH 2004 FILE NO/S : FUL 69 of 2002 BETWEEN : UTA PTY LTD

Appellant

AND

MARK PETER CELENZA
PETER CLEMENT MOORE
Respondents

Catchwords:

Costs - Appellant successful in showing error - Respondent successful in any event - No absolute rule costs follow event - No absolute rule successful party never bears costs of unsuccessful party - In present case costs follow event

Legislation:

Nil

(Page 2)

Result:

Appellant pay respondent costs of appeal

Category: B

Representation:

Counsel:

Appellant : Mr I A Morison
Respondents : Mr A J Aristei

Solicitors:

Appellant : Martella & Co
Respondents : Conal O'Toole

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

Oshlack v Richmond River Council (1998) 193 CLR 72

Case(s) also cited:

Brownsville Nominees Pty Ltd v FCT (1988) 15 ALD 749
Rosniak v SGIO (1997) 41 NSWLR 608


(Page 3)

1 TEMPLEMAN J: On 20 December 2002 I delivered the judgment of the Full Court in this matter, dismissing the appeal.

2 Counsel for the respondents then sought an order that the appellant pay their costs of the appeal to be taxed if not agreed. Counsel for the appellant said he was unable to oppose that order.

3 The parties had not sought an advance copy of the reasons. I therefore pointed out to counsel that the Court had largely decided the appeal on the basis of an argument identified by the Court which had been adopted by the respondents. I said that might have an impact on the appropriate costs order.

4 In those circumstances, counsel for the appellant asked for some time to make written submissions on the question of costs. Counsel for the respondent agreed to that course.

5 I directed that if the parties were unable to agree the costs orders they could either reconvene the Court or file short submissions.

6 The respondents filed submissions on 12 December 2003 (albeit dated 27 October 2003). The appellant filed submissions on 29 January 2004. The respondent filed a responsive submission on 23 February 2004.

7 The respondents contend that the appellant should be liable for their costs "regardless of whether one of their submissions form the basis for the dismissal of the appeal or not".

8 Against that, the appellant contends that the respondents are not entitled of an order for costs as the matter falls within one of the exceptions to the general rule that costs should follow the event. The appellant relies on the judgment of McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at 97-8:

"The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:

'No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.'

(Page 4)

'Misconduct' in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart form the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute."

McHugh J was, however, in dissent. Gaudron and Gummow JJ, in their joint judgment said:

"There is no absolute rule with respect to the exercise of the power [to award costs] that in the absence of disentitling conduct, the successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party." (at p 88 par 40)

9 In the present case, the appellant pursued only two grounds. They are referred to in par 19 of the reasons of the Full Court. As to the first of those grounds; the appellant succeeded in showing that the learned Commissioner erred in law in holding that there had been no breach of s 7(2) of the Strata Titles Act 1985.

10 As to the second of those grounds; the appellant failed in its contention that the learned Commissioner erred in concluding that the appellant had suffered no significant detriment in having to provide two extra car bays. However, the respondent's answer to that contention was founded on a construction of s 103G of the Strata Titles Act which was raised by the Court during the course of argument.

11 It does not follow that but for the argument which the Court identified, the appeal would have succeeded. That is because the respondents would have succeeded in any event on its argument that their mezzanine floor did not "cause" any detriment to the appellant in the relevant sense: see respondents' outline of submissions dated 9 October 2002, par 3 and reasons par 28.

12 That being so, I see no reason to depart from the normal rule that costs should following the event. I would therefore order the appellant to pay the respondents' costs of the appeal, to be taxed if not agreed.

(Page 5)

13 The costs should include a reasonable allowance for the preparation of the outline of submissions.

14 ROBERTS-SMITH J: I have had the opportunity of reading in draft the reasons of Templeman J in this matter. I agree with his Honour and have nothing further to add.