Warrington Management Pty Ltd v Kingslane Property Investments Pty Ltd
[2019] WASC 2 (S)
•22 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WARRINGTON MANAGEMENT PTY LTD -v- KINGSLANE PROPERTY INVESTMENTS PTY LTD [2019] WASC 2 (S)
CORAM: VAUGHAN J
HEARD: 7 FEBRUARY 2019
DELIVERED : 7 FEBRUARY 2019
PUBLISHED : 22 FEBRUARY 2019
FILE NO/S: CIV 2908 of 2013
BETWEEN: WARRINGTON MANAGEMENT PTY LTD
Plaintiff
AND
KINGSLANE PROPERTY INVESTMENTS PTY LTD
Defendant
KINGSLANE PROPERTY INVESTMENTS PTY LTD
Plaintiff by Counterclaim
AND
CHRISTOPHER WILLIAM WEAVER
Defendant by Counterclaim
Catchwords:
Judgment - Appropriate form - Terms of judgment sought by plaintiff - Turns on own facts
Legislation:
Nil
Result:
Plaintiff's claim dismissed
Counterclaim dismissed in part
Category: B
Representation:
Original Action
Counsel:
| Plaintiff | : | D H Solomon |
| Defendant | : | G D Cobby SC |
Solicitors:
| Plaintiff | : | Solomon Brothers |
| Defendant | : | Douglas Cheveralls Lawyers |
Counterclaim
Counsel:
| Plaintiff by Counterclaim | : | G D Cobby SC |
| Defendant by Counterclaim | : | D H Solomon |
Solicitors:
| Plaintiff by Counterclaim | : | Douglas Cheveralls Lawyers |
| Defendant by Counterclaim | : | Solomon Brothers |
Case(s) referred to in decision(s):
Nil
VAUGHAN J:
(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression.)
On 10 January 2019 I delivered reasons for decision in this matter (Reasons). They had the medium neutral citation [2019] WASC 2.
Based on the findings I had made in those Reasons, I set out the orders I proposed to make at par 529 of the Reasons. I said that I would hear from counsel as to the precise terms.
Those proposed orders included an order that the plaintiff's action be dismissed.
The parties were provided with an advance copy of the Reasons. Before judgment delivery both parties provided my chambers with a draft of the orders they considered were appropriate to give effect to the Reasons. Both minutes ‑ including that of the plaintiff ‑ provided for an order that the plaintiff's action be dismissed.
On delivery of judgment, however, counsel for the plaintiff informed me that he had reconsidered whether those orders were appropriate. It was counsel's contention that, on the findings I had made, the plaintiff should succeed. Counsel for the plaintiff contended that the plaintiff should be afforded an opportunity to put on written submissions to explain why that was so. That opportunity was provided. An order was made giving the plaintiff leave to file and serve submissions as to the appropriate form of judgment having regard to the findings made and the case as pleaded and conducted at trial.
Those submissions were duly filed. By them the plaintiff contends the judgment should be entered for it as to:
9.1$683,175 (the figure in [416] of the reasons) less $45,000 paid for services to Warrington [the plaintiff] in August 2012, being a balance of $638,175 plus interest thereon at 6% per annum from 6 December 2013 to judgment, to be paid to Warrington by KPI [the defendant].
There is a preliminary question as to the nature of the present hearing. The defendant, KPI, submits that this is an application to re‑open judgment. That is not so. Judgment has not been entered. It remains open for the parties, including the plaintiff, to make submissions as to the form judgment should take so as to give effect to the Reasons as delivered. In reply written submissions, however, the plaintiff contends that there may be a 're-opening' if the court has proceeded on a misapprehension as to the facts or the law. The plaintiff then says that there is a matter calling for review because, it is said, there appears to have been a misapprehension by the court as to the integers of the plaintiff's restitutionary claim.
I am satisfied that it remains open to the parties to make submissions as to the appropriate form of judgment based on the Reasons as delivered. I am not, however, prepared to entertain any wider 're-opening'. It is not appropriate to reagitate that which was an issue at trial.
For the avoidance of doubt I do not accept that there was any misapprehension as to the integers of the plaintiff's restitutionary claim.
Paragraph 1 of the plaintiff's written submissions dated 18 January 2019 set out what the plaintiff says its pleaded claim for restitution was based on. Those matters were identified and addressed in the Reasons. One such matter that is worth highlighting, because of the form the plaintiff now contends judgment should take, is the acknowledgement in par 1.1 of the plaintiff's written submissions dated 18 January 2019 that the pleaded claim is based on (meaning it was necessary to so prove) that services were provided by the plaintiff to KPI at its request pursuant to a preliminary agreement.
The plaintiff's submissions dated 18 January 2019 also record the following:
8.Warrington only needed to prove that an enforceable contract as to remuneration was not made, that it was nominated as the party entitled to remuneration of services provided to KPI by Mr Weaver at KPIs request in expectation of a contract being made, and that it would be unconscionable for it to not be remunerated for those services.
The plaintiff's written submissions dated 18 January 2019 also assert, relying on the Reasons at par 296, that a finding was made that there had been a request for services. That, with respect, appears to involve a misreading of par 296 of the Reasons. Otherwise, as best as I understand it, the contention made at par 7 of the plaintiff's submissions is that the only remaining issue on which it did not succeed is whether the plaintiff, as opposed to Mr Weaver, is entitled to restitution. The plaintiff's submissions go on in par 7 to suggest that the case was not conducted at trial in a manner consistent with the way in which the matter is addressed in the Reasons and that the plaintiff did establish that it was nominated as the company to be remunerated for the services as performed.
There are two fundamental misconceptions with these contentions.
First, whether there was an agreement that the plaintiff ‑ either by itself or by nomination ‑ was to be remunerated for services was very much in issue at trial. So too was whether the services were provided by the plaintiff (through Mr Weaver) or by Mr Weaver as a director of KPI.
At ts 39 counsel for the plaintiff stated in opening:
Mr Weaver did a lot of work for KPI. The material question's really about ‑ are whether he did it in his capacity as managing director or whether he did it in his capacity as director of his company, Warrington Management Proprietary Limited.
At ts 90 counsel for KPI stated in opening:
The defendant's case - there was never any arrangement that Mr Weaver would be remunerated on a reward for effort basis. It was never the case that there was any agreement or arrangement that Mr Weaver's services were to be provided by the plaintiff, Warrington Management Pty Ltd.
This exchange then occurred:
Myself: And is that put in those two separate ways: (1) there's no arrangement, and, in the alternate, even if there was, it wasn't with Warrington.
Counsel for the defendant: Yes.
So, from the outset, KPI made plain that it was in issue whether the plaintiff, as opposed to Mr Weaver, was entitled to restitution.
Finally, at ts 443 to ts 445 I identified, prior to closing, what I understood to be the 10 main issues as pleaded. They included, at ts 443:
So the first issue that I see is what agreement, if any, is there between Mr Weaver, on the one hand, and the Cranstons or, alternatively, the defendant, on the other, that a plaintiff or a company nominated by Mr Weaver would be remunerated for services either on terms to be agreed or at all. The second issue is whether the plaintiff provided services to the defendant at the defendant's request or whether they were provided by Mr Weaver as managing director of the defendant.
It was not suggested that there were any other material issues as to the plaintiff's pleaded case in restitution. Further, in closing counsel for the plaintiff specifically directed submissions to the two issues as identified. So too did counsel for the defendant.
Accordingly, I do not accept that there has been any misapprehension as to the integers of the plaintiff's restitutionary claim as it was run at trial. The Reasons address the pleaded claim as it was conducted at trial. It was always necessary to determine whether the plaintiff, as opposed to Mr Weaver, was entitled to restitution.
The second fundamental misconception is the suggestion that it is now open to find that:
(1)in terms of par 1 of the plaintiff's written submissions dated 18 January 2019 ‑ that services were provided by the plaintiff to KPI; and
(2)in terms of par 7 (in particular par 7.5) and par 8 of the plaintiff's written submissions dated 18 January 2019 ‑ that the plaintiff was nominated as the entity entitled to remuneration for the services provided to KPI.
Findings have been made in the Reasons which, if they are to be challenged, ought only to be challenged on appeal. Relevantly they include findings to the following effect:
(1)First, there was not an intended remuneration agreement to the effect that the plaintiff would be remunerated for services to KPI: Reasons at [336], [341], [352], [353], [354], [356] and [371].
(2)Second, it was not established that it was the plaintiff who was to provide the services to KPI: Reasons at [341] and [353].
(3)Third, the discussions were as to Mr Weaver being remunerated for services to be provided to KPI: Reasons at [353], [354], [356] and [371].
(4)Fourth, it was not established that there was an agreement to the effect that a company nominated by Mr Weaver would be remunerated for services to be provided to KPI: Reasons at [356], [364], [365] and [366]. I note here that, in oral reply submissions, counsel for the plaintiff suggested that Mr Weaver had a right to nominate the plaintiff to be the recipient of remuneration for services provided by Mr Weaver. Why that was so was not explained. It is, however, inconsistent with the findings that I have referred to.
(5)Fifth, the plaintiff was not nominated as the entity to be remunerated for the services performed by Mr Weaver: Reasons at [355], [360], [362] to [363], [364] and [371].
(6)Sixth, Mr Weaver provided the relevant services rather than the plaintiff: Reasons at [372], [375] and [378].
The basis on which the plaintiff suggests that it is entitled to judgment in its favour is not open on the findings in the Reasons. It has been found that the plaintiff did not provide the services. It has been found that the plaintiff was not nominated by Mr Weaver as the entity to be remunerated by KPI.
In the plaintiff's written submissions dated 18 January 2019, and in oral submissions made this morning, much has been made of the fact that specific litigated defences failed. That may be accepted, but so too did the pleaded claim by the plaintiff. The plaintiff does not establish its claim by establishing that Mr Weaver might have had a claim.
Based on the findings in the Reasons, judgment should be entered for KPI, as the defendant, dismissing the claim.
I will order accordingly.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Research Associate to the Honourable Justice Vaughan22 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WARRINGTON MANAGEMENT PTY LTD -v- KINGSLANE PROPERTY INVESTMENTS PTY LTD [2019] WASC 2 (S2)
CORAM: VAUGHAN J
HEARD: 7 FEBRUARY 2019
DELIVERED : 7 FEBRUARY 2019
PUBLISHED : 22 FEBRUARY 2019
FILE NO/S: CIV 2908 of 2013
BETWEEN: WARRINGTON MANAGEMENT PTY LTD
Plaintiff
AND
KINGSLANE PROPERTY INVESTMENTS PTY LTD
Defendant
KINGSLANE PROPERTY INVESTMENTS PTY LTD
Plaintiff by Counterclaim
AND
CHRISTOPHER WILLIAM WEAVER
Defendant by Counterclaim
Catchwords:
Costs - Turns on own facts
Legislation:
Nil
Result:
Costs orders made
Category: B
Representation:
Original Action
Counsel:
| Plaintiff | : | D H Solomon |
| Defendant | : | G D Cobby SC |
Solicitors:
| Plaintiff | : | Solomon Brothers |
| Defendant | : | Douglas Cheveralls Lawyers |
Counterclaim
Counsel:
| Plaintiff by Counterclaim | : | G D Cobby SC |
| Defendant by Counterclaim | : | D H Solomon |
Solicitors:
| Plaintiff by Counterclaim | : | Douglas Cheveralls Lawyers |
| Defendant by Counterclaim | : | Solomon Brothers |
Case(s) referred to in decision(s):
Nil
VAUGHAN J:
(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression.)
The parties have addressed me on the question of costs. The defendant, KPI, seeks costs as follows:
(1)The plaintiff (ie Warrington) pay the defendant's costs of the plaintiff's claim, including any reserved costs, to be taxed if not agreed.
(2)The first defendant by counterclaim (ie Mr Weaver) pay 50% of the defendant's cost of the counterclaim, including reserved costs.
Warrington and Mr Weaver initially sought no order as to costs. Alternatively, it was sought that KPI pay Warrington's costs of the counterclaim; and that as far as the costs of the action were concerned, those be reduced by an appropriate percentage.
In the action KPI is the successful party. There were, however, material issues on which it failed. Those issues took up significant time at trial. Senior counsel for KPI accepted, correctly in my view, that it was open as a matter of discretion to reduce KPIs costs in light of the issues on which it lost.
In the counterclaim Warrington has been wholly successful. Ordinarily it should have its costs. But, given Warrington's lack of success in the action, those costs would inevitably be set off against the costs of the action. Otherwise, as between KPI and Mr Weaver, KPI has been partially successful and partially unsuccessful. The litigated issue on which KPI was successful was, however, really subsumed with issues litigated in the action. I refer there to whether there was any agreement as to the terms for repayment of the $350,000.
In the course of discussion between bar and bench ‑ conscious of the practicalities of taxation ‑ counsel for Warrington and Mr Weaver made a practical suggestion: the costs of the action and counterclaim should be viewed as one set. An appropriate allowance should then be awarded to KPI. This would see, in effect, Warrington ‑ as the unsuccessful plaintiff in the action, bearing a percentage of the overall costs. It would also see the costs position of Mr Weaver wrapped in with Warrington. That is perhaps understandable given that Mr Weaver is the controller of Warrington.
Senior counsel for KPI was accepting of that proposal. He suggested, however, that the suggested percentages mentioned by counsel for Warrington and Mr Weaver were too low.
I accept the suggestion as a pragmatic outcome that is likely to assist all parties.
Otherwise, had this course not been raised, I would have:
(1)ordered that Warrington pay KPI's costs of the action with an appropriate deduction;
(2)ordered that KPI pay Warrington's costs of the counterclaim; and
(3)ordered that Mr Weaver pay a portion of KPI's costs of the counterclaim.
I accept that will create a confusing taxation with much work and unnecessary costs for all concerned.
What, however, is an appropriate percentage to award to KPI?
In forming a view on that question I am guided by the parties' respective successes, as noted before. I also take the view that considerably more of the trial was concerned with the action than the counterclaim. On that basis, and having regard to the parties' respective successes and failures, I consider it appropriate and just and reasonable that, in the exercise of discretion, KPI should have 35% of the costs of the action and the counterclaim, taxed as one set.
I have come to that figure by:
(1)placing a notional allowance as to a percentage of the general work for the trial as between the action and the counterclaim;
(2)assessing broadly what would have been allowed by way of discount on individual costs orders of the nature of that which I have previously stated (at par 8 above); and
(3)netting off one as against the other.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Research Associate to the Honourable Justice Vaughan22 FEBRUARY 2019
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