WEA International Inc. v Record Collectors Corner

[1991] FCA 454

JN THE F E D W U R T OF ) )

H T U O S ) No G495 of 1990

1

GENERAL DIVISION )

BETWEEN:	WEA INTERNATIONAL INC & ANOR.
Applicant

m:	RECORD COLLECTORS CORNER & ANOR.
Respondent

C O W : HILL J

U:	SYDNEY
29 MAY 1991

EX TEMPORE REASONS FOR JUDGMENT

The applicant seeks, on a solicitor and client
basis, the costs of the following steps taken by it. First,
its request for particulars dated 8 November 1990; second, its

request for particulars of 19 December 1990; third, its costs of a letter of 11 March 1991; fourth, the costs of a letter of 26 March 1991; fifth, its costs of a letter dated 4 April 1991; sixth, the costs of a letter of 17 April 1991, in addition to the costs of a motion to strike out the cross-claim and defence. The matter arises because the applicant's motion to strike out, which was to be heard this morning, has become unnecessary having regard to amendments that have now been made or are proposed to be made by the respondent to its defence and cross-claim.

cross-claim. It is agreed in respect of those letters that

The respondent had made an open offer to pay on a
party and party basis the costs of the letters numbered 3 to 5
inclusive and the costs of the motion to set aside the

the offer relates not merely to the costs of the actual letter, but the costs of and incidental to its preparation which, assuming it had been appropriate, could include the costs of advice from counsel, if any, taken in respect of those letters.

In support of the submission that the costs should be borne on a solicitor and client basis, counsel for the applicant submits that in respect, particularly, of the actions taken by her instructing solicitors upon receiving the letter of 17 April, her instructing solicitors were misled in that they believed that that letter had been drafted by counsel when it was said in fact it was not. No evidence before me has been adduced as to whether or not counsel did send the letter, but in my view I think that is an irrelevant matter. There is nothing in the actual letter itself which could be said to be misleading. The letter purported to supply particulars on instructions of the client. The party

entitled to treat the answer as one of importance whether or

requesting the particulars and receiving the replies was

not, as a matter of fact, it should turn out that counsel did not settle it. The real complaint of the applicant, in my view, should not be whether or not it was misled (for the misleading could only have arisen from a misconception on the part of the solicitors of the applicants, assuming counsel did not draft the reply), but rather whether the particulars supplied were, having regard to the request to give them, an adequate response in accordance with the generally accepted principles of replies to particulars.

It can be seen that in essence what is in dispute between the parties is the cost of t w letters, that of 8 November 1990 and that of 19 December 1990 both requesting particulars and the costs of considering the letter of 4 April and the costs of the letter of 17 April. It seems an inordinate waste of court resources that that matter should have occupied well over an hour of the court's time. It also seems to me that the letter of 8 November 1990 and the letter of 19 December 1990 requesting particulars are part of the ordinary costs of the proceedings. If the applicant had been of the view that the defence or cross claim at that time disclosed no reasonable defence or cause of action, as the case may be, no doubt it would have then and there sought to move the court to strike out the defence or cross claim as the case may be. The request and reply to particulars ultimately will not be wasted in so far as they may contain admissions and as counsel for the respondent said, the amended cross

claim and amended defence had to be drafted closely following those particulars obviously for the reason that if there were any conflict it would be to the detriment of his client's case.

The three letters between 11 March 1991 and 4 April are not in dispute. The letter of 17 April in my view, apart from making claims about costs, was in part occasioned by the notice of motion for strike out which was at that stage adjourned until 25 April. It seems to me that in determining, if need be, the amount payable on taxation in respect of the notice of motion, the costs of the letter of 17 April should be treated as part of the costs of the notice of motion and a reasonable time for considering the letter of 4 April, supplying particulars and if necessary seeking counsel's advice on those particulars related to the question of striking out of the cross claim and defence, would be an appropriate matter to be allowed.

Accordingly, it does not seem to me necessary to deal specifically with the letters of 17 April or such attendances as may have been occasioned by the respondent's reply of 4 April. It follows that I would order that the respondent pay the costs of the correspondence of 11 March, 26 March and 4 April and also that the respondent pay costs

to the notice of motion or notices of motion to strike out the incidental to those letters as well as costs of and incidental

defence and cross claim. Notwithstanding all that has been urged upon me that these costs should be paid on a solicitor and client basis at the end of the day the only argument in support of that was that the applicant's solicitors were mieled. In the absence of any other evidence, such misleading as there may have been resulted in a misconception on the part of the applicant's solicitors, rather than any action on the part of the respondent. Accordingly, it seems to me inappropriate that costs should be ordered on a solicitor and client basis but rather on a party and party basis.

The remaining matter outstanding between the parties is as to costs of the present argument. The terms of the order I have made of course reflects the terms of the open offer that was put. On the other hand, what has really been in dispute is the costs of the letter of 17 April and in respect of that, although it is not directly mentioned in the order which I propose to make or have made, I have dealt with it as part of the costs of the notice of motion so to that extent the applicant has been successful. In respect of the request for particulars of 8 November and 19 December the applicant has been unsuccessful. It seems to me that in those circumstances the appropriate order is that there be no order as to costs.

I certify that this and the

preceding four (4) pages
are a true copy of the Reasons
for Judgment herein of is Honour

Mr Justice Bill,, A,?

Associate: / B Date: 29 19$1

Counsel and Solicitors	A.H. Bowne instructed by
for Applicant:	Allen Allen & Hemsley
Counsel and Solicitors	P.F. Esler instructed Flory
for Respondent:	Czarny Charlesworth
Date of Hearing:	29 May 1991
Date Judgment Delivered:	29 May 1991