WILDEN PTY LTD -v- GREENCO PTY LTD [2004] WASCA 55

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 55
Court:	THE FULL COURT (WA)	Published:	12/03/2004
Case No:	FUL:89/2003	Heard:	12 MARCH 2004
Coram:	MCKECHNIE J EM HEENAN J	Delivered:	12/03/04
No of pages:	4	Judgment Part:	1 of 1
Result:	Leave refused
Category:	B
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Parties:	WILDEN PTY LTD GREENCO PTY LTD
Catchwords:	Costs orders Delay in presenting bill of costs for taxation Whether taxation should be stayed Turns on own facts
Legislation:	Nil
Case References:	Busby v The Chief Manager, Human Resources Dept, Australian Telecommunications Commission [1992] FCA 78 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WILDEN PTY LTD -v- GREENCO PTY LTD [2004] WASCA 55 CORAM : MCKECHNIE J

EM HEENAN J

HEARD : 12 MARCH 2004 DELIVERED : 12 MARCH 2004 FILE NO/S : FUL 89 of 2003

FUL 90 of 2003

FUL 91 of 2003

BETWEEN : WILDEN PTY LTD

Applicant

AND

GREENCO PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : PULLIN J

File Number : FUL 133 of 1995; CIV 1622 of 1995; CIV 1864 of 1995

(Page 2)

Catchwords:

Costs orders - Delay in presenting bill of costs for taxation - Whether taxation should be stayed - Turns on own facts

Legislation:

Nil

Result:

Leave refused

Category: B

Representation:

Counsel:

Applicant : Mr T Galic

Respondent : Mr M L Bennett

Solicitors:

Applicant : Galic & Co

Respondent : Bennett & Co

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

Busby v The Chief Manager, Human Resources Dept, Australian Telecommunications Commission [1992] FCA 78

Case(s) also cited:

Nil

(Page 3)

1 MCKECHNIE J: There are three applications for leave to appeal but the matters are common. The history of the matter need not be recounted in any great detail and can conveniently commence on 20 January 2000 when the Full Court made orders for costs in favour of the present respondent against the present applicant. It appears that nothing much was done about that order for some considerable time, over 2 years, when the order was extracted in January 2002. Further unexplained delay occurred before a bill of costs was presented.

2 The present applicant, after seeking an adjournment of the taxation, then took proceedings before Pullin J for a stay of the taxation. That matter came before the judge on 30 May 2003 and in brief, but adequate, extempore reasons he refused the stay.

3 It is the case, as I have remarked earlier, that the delay was unexplained. However, there is no evidence to suggest that the delay was contumelious or intentional and it was within the period of 6 years which is allowed to enforce orders.

4 Mr Galic of counsel has this morning pointed to the fact that the chief complaint is as to the process and that there should have been some explanation. That may or may not have some significance but this is an application for leave to appeal against a discretionary judgment. The judge exercised his discretion as to the question of prejudice noting that there was a delay of nearly 2 years.

5 Counsel has referred to Busby v The Chief Manager, Human Resources Dept, Australian Telecommunications Commission [1992] FCA 78 a decision of French J in the Federal Court in 1992. In that case the delay was of some 4 years and there was no finding that the delay was contumelious or intentional. French J said at [8]:

"It is right to say that the burden of showing prejudice justifying a stay rests upon Mr Busby…"

6 In Busby, having heard evidence, French J held that Mr Busby had discharged his burden. In the present case, the judge concluded, in a matter which counsel has frankly conceded was open to him, that there was no sufficient evidence of prejudice to the defendant. In those circumstances, there being no evidence of contumelious or intentional delay, merely explained delay, and the applicant not establishing prejudice, the decision made by the judge in the exercise of discretion was one that was open to him. That being so, leave in all three cases should be refused.
(Page 4)

7 EM HEENAN J: I agree with the reasons just announced by McKechnie J and that leave to appeal in each of these three applications should be refused.

Wilden Pty Ltd took legal action against Greenco Pty Ltd, seeking a declaration that a building lease was invalid due to alleged breaches. The case was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether to stay the taxation of the defendant's costs due to a delay in presenting the bill of costs for taxation. The court had to consider if this delay warranted a stay under the relevant legal principles.

The court noted that the defendant had not provided a satisfactory explanation for the delay in presenting the bill of costs for taxation. The defendant argued that the delay was caused by the plaintiff's delay in providing a Statement of Claim. However, the court found that this argument was not sufficient to justify the delay. The court further found that the defendant had not acted with due diligence in pursuing the taxation of costs. As a result, the court held that the delay was unreasonable and that the defendant's costs should not be taxed until a satisfactory explanation was provided.

In conclusion, the court refused the defendant's application for leave to tax the costs due to the unreasonable delay in presenting the bill of costs for taxation. The court emphasised that the decision was based on the specific facts of this case and did not set a precedent for future cases. The defendant was required to provide a satisfactory explanation for the delay before the costs could be taxed.

Wilden Pty Ltd v Greenco Pty Ltd

WILDEN PTY LTD -v- GREENCO PTY LTD [2004] WASCA 55

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