WEST AUSTRALIAN CONSTRUCTION INDUSTRY REDUNDANCY FUND LTD -v- ORTIN & ORS [2002] WASC 185 (S2)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 185 (S2)
Case No:	CIV:1722/1999	Heard:	8-10, 13-16 MAY 2002, 22 JULY & 26 AUGUST 2003
Coram:	McKECHNIE J	Delivered:	19/07/02
Supplementary Delivered:	19/09/03
No of pages:	10	Judgment Part:	1 of 1
Result:	Extension of time granted Part special costs order made
Category:	B
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Parties:	WEST AUSTRALIAN CONSTRUCTION INDUSTRY REDUNDANCY FUND LTD (ACN 009 404 273) MARIA MICHELLE ORTIN RONALD GRAHAM O'CONNOR COUNTRYWIDE HOME LOANS LTD GEORGE JASPER JACKSON McDONALD (A FIRM)
Catchwords:	Practice and procedure Extension of time to seek special costs order Principles Special costs order Whether required Case turns on own facts
Legislation:	Nil
Case References:	City of Rockingham v Curley & Anor [2000] WASCA 202(S) Geneva Finance Ltd (Receiver and Manager Appointed) v Resource & Industry Ltd [2002] WASC 121(S) Lewandowski v Lovell, unreported; FCt SCt of WA; Library No 960310; 14 June 1996 Snowtop Mushrooms v Powley, unreported; FCt SCt of WA; Library No 4501; 14 May 1982 Verdell Pty Ltd v F & G Nominees Pty Ltd & Anor [2002] WASC 58(S) West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASCA 185(S) Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : WEST AUSTRALIAN CONSTRUCTION INDUSTRY REDUNDANCY FUND LTD -v- ORTIN & ORS [2002] WASC 185 (S2) CORAM : McKECHNIE J HEARD : 8-10, 13-16 MAY 2002, 22 JULY & 26 AUGUST 2003 DELIVERED : 19 JULY 2002 SUPPLEMENTARY
DECISION : 19 SEPTEMBER 2003 FILE NO/S : CIV 1722 of 1999 BETWEEN : WEST AUSTRALIAN CONSTRUCTION INDUSTRY REDUNDANCY FUND LTD (ACN 009 404 273)

Plaintiff

AND

MARIA MICHELLE ORTIN

First Defendant

RONALD GRAHAM O'CONNOR

Second Defendant

COUNTRYWIDE HOME LOANS LTD

Third Defendant

GEORGE JASPER

Fourth Defendant

JACKSON McDONALD (A FIRM)

Fifth Defendant

(Page 2)

Catchwords:

Practice and procedure - Extension of time to seek special costs order - Principles - Special costs order - Whether required - Case turns on own facts

Legislation:

Nil

Result:

Extension of time granted

Part special costs order made

Category: B

Representation:

Counsel:

Plaintiff : Mr A Hershowitz

First Defendant : No appearance

Second Defendant : No appearance

Third Defendant : Mr C G Colvin SC

Fourth Defendant : Mr C G Colvin SC

Fifth Defendant : No appearance

Solicitors:

Plaintiff : Metaxas & Vernon

First Defendant : Solomon Brothers

Second Defendant : In person

Third Defendant : Freehills

Fourth Defendant : Freehills

Fifth Defendant : Blake Dawson Waldron

(Page 3)

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

City of Rockingham v Curley & Anor [2000] WASCA 202(S)
Geneva Finance Ltd (Receiver and Manager Appointed) v Resource & Industry Ltd [2002] WASC 121(S)
Lewandowski v Lovell, unreported; FCt SCt of WA; Library No 960310; 14 June 1996
Snowtop Mushrooms v Powley, unreported; FCt SCt of WA; Library No 4501; 14 May 1982
Verdell Pty Ltd v F & G Nominees Pty Ltd &…

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.

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Details

AGLC: West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185 (S2)
Case: [2002] WASC 185 (S2)
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of West Australian Construction Industry Redundancy Fund Ltd v Ortin involved the third and fourth defendants seeking an extension of time to apply for special costs orders after trial. The third and fourth defendants had been successful at trial but had failed to seek a special order for costs at the time of judgment. On 28 October 2002, the third and fourth defendants filed chamber summons for an order to extend time for seeking special costs orders after trial and for special costs orders in respect of certain items. The primary legal issue was whether the court should grant an extension of time to apply for special costs orders, and if so, whether a special costs order should be made in respect of certain items. The court considered the principles set out in previous cases such as Lewandowski v Lovell and Snowtop Mushrooms v Powley, and held that the exercise of the court's discretion to extend time must be exercised for the interests of justice. The court granted the extension of time but found that the case did not involve unusual complexity or importance to warrant a special costs order for certain items. However, the court did make a special costs order to extend the limit of the Supreme Court scale of costs for counsel's fees for trial, finding that the changing nature of the plaintiff's case constituted good and sufficient reason to lift the scale in respect of counsel's fees.

Orders