WA Welder Repairs Pty Ltd v SHROPSHALL - [2009] WASC 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WA WELDER REPAIRS PTY LTD -v- SHROPSHALL [2009] WASC 172

CORAM: MASTER SANDERSON

HEARD: 11 JUNE 2009

DELIVERED : 11 JUNE 2009

PUBLISHED : 18 JUNE 2009

FILE NO/S: COR 85 of 2009

BETWEEN: WA WELDER REPAIRS PTY LTD (ACN 099 815 586)
Plaintiff
AND
DAVID WILLIAM SHROPSHALL
EPIFANIA SERON SHROPSHALL
Defendants

Catchwords:

Costs - Application for indemnity costs when opposition to application to set aside a statutory demand was bound to fail - Failure of defendants' solicitors to properly advise defendants

Legislation:

Nil

Result:

Indemnity costs awarded

Category: A

Representation:

Counsel:

Plaintiff: Mr J L Sher
Defendants: Mr O D Feinauer

Solicitors:

Plaintiff: Butcher Paull & Calder
Defendants: Feinauer & Associates

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

Ambassador at Redcliffe Pty Ltd v Emerald Constructions Australia Pty Ltd (2006) 24 ACLC 882
Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85
Help Desk Institute Pty Ltd v Adams (1999) 17 ACLC 18

MASTER SANDERSON: This was the plaintiff's application to set aside a statutory demand. When the matter was called on for hearing counsel for the defendants indicated that the defendants neither consented to nor opposed an order being made setting aside the demand. As I was satisfied there was a genuine dispute in relation to this matter, I set aside the demand. There was then an argument as to costs. The plaintiff sought to have its costs paid on a full indemnity basis. The defendants suggested the costs be reserved. After hearing argument I made an order in favour of the plaintiff for indemnity costs. I indicated that I would publish reasons for that decision. These are those reasons.
The application to set aside the statutory demand was filed on 6 May 2009. It was supported by an affidavit of Bryan Eugene McGrath sworn 6 May 2009. Attached to that affidavit were five separate statutory demands. Each of the demands was for $8,000. The only variation between each demand was a date found in the schedule to the demand under 'Description of the debt'. I can illustrate the point by reference to the first demand which appears as attachment BEM1. Under the description of the debt there appears the following:
The debt is for monies due and payable as and by way of the instalment payment due 15 December 2008 payable to the Company by the Creditor pursuant to clause 10.2 of the Share Sale Agreement entered into between the Company and the Creditor dated 13 October 2008.
The second of the demands refers to 15 January 2009. The third to 15 February 2009 and so on. Although there were five demands, only one application was issued to set aside the five separate demands. This is a perfectly proper course to follow in circumstances such as this: see Help Desk Institute Pty Ltd v Adams (1999) 17 ACLC 18; Ambassador at Redcliffe Pty Ltd v Emerald Constructions Australia Pty Ltd (2006) 24 ACLC 882.
A copy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WA Welder Repairs Pty Ltd v SHROPSHALL

Details

AGLC: WA Welder Repairs Pty Ltd v SHROPSHALL [2009] WASC 172
Case: [2009] WASC 172
Decision Date: 11 JUNE 2009

CaseChat Overview and Summary

The parties to the case were WA Welder Repairs Pty Ltd, the plaintiff, and SHROPSHALL, the defendant. The dispute involved an application by the plaintiff for indemnity costs, following a failed opposition to an application to set aside a statutory demand. The matter was heard in the Supreme Court of Western Australia. The plaintiff, a company specialising in welder repairs, had issued a statutory demand to the defendant, an individual, for an amount of debt owed. The defendant opposed the application to set aside the statutory demand, but this opposition was ultimately unsuccessful.

The primary legal issue before the court was whether the plaintiff was entitled to indemnity costs due to the defendant's unsuccessful opposition. The court had to consider whether the defendant's solicitors had provided adequate advice to the defendant, which could have impacted the outcome of the opposition. Additionally, the court needed to determine if the opposition to the statutory demand was bound to fail, as this would affect the plaintiff's entitlement to indemnity costs.

The court found that the defendant's solicitors had failed to properly advise the defendant, resulting in a lack of proper defence to the statutory demand. The court held that the opposition was bound to fail due to the inadequacies in the defence provided. Consequently, the plaintiff was entitled to indemnity costs for the unsuccessful opposition. The court emphasised the importance of proper legal advice in such matters and awarded the plaintiff the costs sought.

The final orders of the court were that the defendant and the defendant's solicitors were to pay the plaintiff's costs of and incidental to the application for indemnity costs. The specific amount of costs was to be determined by the Registrar of the Supreme Court.

Orders