Williams v Nicoski
[2008] WASC 46 (S)
•8 APRIL 2008
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | WILLIAMS -v- NICOSKI [No 3] [2008] WASC 46 (S) |
| CORAM | : MASTER SANDERSON | ||
| HEARD |
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| DELIVERED |
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| SUPPLEMENTARY | |||
| DECISION |
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| FILE NO/S |
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| BETWEEN | : TROY WILLIAMS |
Plaintiff
AND
GEORGETTE NICOSKI
First Defendant
NUTRIMETICS INTERNATIONAL (AUSTRALIA)
PTY LTDSecond Defendant
Catchwords:
Taking accounts - Costs of trial and related matters - Turns on own facts
Legislation:
Nil
[2008] WASC 46 (S)
Result:
Accounts settled
Each party to bear own costs
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr C M Duncan |
| First Defendant | : | Mr M D Howard |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Gibson Lyons |
| First Defendant | : | Tottle Partners |
| Second Defendant | : | No appearance |
Case(s) referred to in judgment(s):
Stambulich v Ekamper [2001] WASCA 283
Timms v Clift [1998] 2 Qd R 100
Williams v Nicoski [No 3] [2008] WASC 46
| MASTER SANDERSON | [2008] WASC 46 (S) |
MASTER SANDERSON: On 8 April 2008, I published reasons in relation to a taking of accounts in this matter: Williams v Nicoski [No 3] [2008] WASC 46. Subsequent to the publication of those reasons, the first defendant pointed out that I had not dealt with a claim that the partnership had a debt liability as at 19 April 1999 of $673 owed to an accounting firm. This is dealt with by annexure GN2 to the affidavit of the first defendant sworn 19 November 2004. I accept that order 6(c) of the orders made by Barker J on 10 July 2003 allows the first defendant to bring the $673 liability into account. This was a matter overlooked in my original reasons. The effect of including this amount as a liability of the partnership would reduce the amount owed to the plaintiff by $336.50, meaning that he is entitled to an amount of $10,785.01.
2 Pursuant to my reasons, the plaintiff would also be entitled to interest
on that sum. The interest calculation should be adjusted up to 8 May 2008, the date of publication of the reasons. The order should reflect the appropriate amount of interest payable.
3 That then leaves the question of costs of the action between the
plaintiff and the first defendant. Pursuant to order 15 of the orders made by Barker J on 10 July 2003, the costs of the action between the plaintiff and the first defendant were reserved until the taking of the account. The matter was referred back to his Honour who directed that I deal with the costs question. Both parties have been invited to and have made submissions in relation to costs.
4 The first defendant submits that I should make orders in terms of
pars 2 to 6 of a minute filed 7 April 2008. The orders proposed in these
paragraphs are as follows:2. The first defendant do pay the plaintiff's costs of the action up until 16 October 2000, including any reserved costs, such costs to be taxed if not agreed.
3. The plaintiff do pay the first defendant's costs of the action from 17 October 2000 and the costs of taking the account, including any reserved costs, such costs to be taxed if not agreed.
4. In respect of the costs of the action there be a certificate for second counsel and an allowance for transcript.
5. The judgment in order 1 and the payment of costs in order 2 be stayed pursuant to s 15 of the Civil Judgments Enforcement Act 2004 pending the taxation of costs in order 3.
| MASTER SANDERSON | [2008] WASC 46 (S) |
6. The first defendant be entitled to set off so much of the costs payable by the plaintiff pursuant to order 3 as will extinguish the amount of the judgment in order 1 and the costs payable pursuant to order 2.
On behalf of the plaintiff, the orders sought in a minute filed 16 April 2008 are as follows:
1. The first defendant do pay the plaintiff's costs of the action including the taking of accounts and, including any reserved costs, such costs to be taxed if not agreed.
2. The plaintiff be entitled to an allowance for transcript.
6 This action was commenced by the plaintiff against the defendants
on 19 April 1999. Until the second day of the trial, the plaintiff's statement of claim claimed against the first defendant 'the net present value of $7,330,000'. On 16 October 2000, the first defendant made an offer under the then O 24A of $15,000. This offer was rejected by the plaintiff. See affidavit of Paul Charles Blackman (Blackman) sworn 7 April 2008.
The first defendant says that there were five issues litigated between the parties at trial. These are said to have been:
1. Was there a partnership between them? 2. Was the 1988 limited agency agreement partnership property? 3. Was the 1997 limited agency agreement partnership property? 4. Would the court dissolve the partnership pursuant to the Partnership Act 1895 (WA)? 5. Had the first defendant breached the partnership agreement giving the plaintiff a right to damages and equitable compensation? 8 The plaintiff put the issues slightly differently. He said that the
issues were whether the plaintiff and the first defendant had entered into a partnership agreement constituted by the oral terms and the 1997 limited agency agreement. He also sought orders dissolving the partnership, that the partnership be wound up and all necessary accounts and enquiries be taken and that he be awarded damages or equitable compensation. He also sought orders that there be a sale of the business comprising the partnership.
9 To some extent, both parties are correct in their assertions about who
won and who lost at the trial. What is, I think, significant, is that between
| MASTER SANDERSON | [2008] WASC 46 (S) |
the issue of the writ in April 1999 and the second day of the trial, the plaintiff was claiming over $7,000,000. The particulars of loss and damage were amended by the plaintiff on 5 November 2002 (the third day of the trial) to claim that the value of the business partnership then was $349,476 (par 4 of Blackman's affidavit sworn 7 April 2008). There would seem to be little doubt that what was driving the plaintiff in these proceedings was a view that he was entitled to a substantial amount of money. In the end, he has received a nominal sum. In real terms - that is to say, in dollar terms the only currency that really matters - the plaintiff has been largely unsuccessful.
10 Pursuant to O 24A r 10(5), the ordinary rule would be that the
plaintiff would be entitled to his costs against the first defendant from the issue of the writ on 19 April 1999 until 16 October 2000 on a party-party basis. The first defendant would then be entitled to an order against the plaintiff for her costs from 17 October 2000 onwards. That is reflected in orders 2 and 3 of the proposed minute of orders of the first defendant.
11 It is the plaintiff's position that although the plaintiff may have
received a sum 'not more favourable to him than the terms of the offer' for the purposes of O 24A r 10(5), the court should have regard to the relief which the plaintiff has obtained and which does not involve the payment of money. Reference was made to Timms v Clift [1998] 2 Qd R 100 and Stambulich v Ekamper [2001] WASCA 283 [2], [12], [97].
12 Developing this theme, the plaintiff argues that he fought to have the
terms and duration of the existing partnership determined. He also sought an account for profits of that partnership. He says that the first defendant resisted this but failed. He says that the plaintiff has emerged as a substantial winner and was entitled to reject the O 24A offer.
13 In further support of this proposition, the plaintiff points out that the
first defendant did not provide discovery to the plaintiff of the financial information annexed as GN9 to GN14 to her affidavit dated 19 February 2008 (the basis for the accounting) until on or about 11 September 2002. It was this information which permitted the plaintiff to quantify his claim in or about November 2002, at the commencement of the trial. This occurred some two years after the offer of compromise was made and it is not reasonable to assume such matters formed the basis of the first defendant's offer. In any event, it was argued the question is whether or not it was reasonable for the plaintiff to have rejected the offer when it was made in October 2000. In the absence of full and frank discovery, the plaintiff says that the rejection was not unreasonable. Furthermore, the
| MASTER SANDERSON | [2008] WASC 46 (S) |
plaintiff says that it was not until the first defendant filed her affidavit dated 19 February 2008 that he was finally aware that the second defendant would not consent to the sale of the partnership business. This, he said, materially affected the entitlement and it was not a matter which was known prior to the first defendant's affidavit being filed.
14 In the end, I am satisfied that the proper order in this case is that each
party should bear their own costs. So far as the plaintiff is concerned, I accept that there were issues between the parties as to the termination of the partnership and the assets that were partnership property that were resolved in his favour. But, as I have said, the prime motivating factor was doubtless the desire of the plaintiff to be paid a substantial amount of money. Moreover, he was offered years ago just slightly more than he has now received. In those circumstances, it would, in my view, be unreasonable to expect his costs to be met by the first defendant. So far as the first defendant is concerned, she was the party who had in her possession the partnership property. When the offer of settlement was made, the plaintiff could not reasonably have been expected to accept it. He says, and it is not contradicted, that he did not have full discovery as at the date of the offer. There were issues at the trial in which the first defendant was successful, but there were also issues where she lost. While I accept it would be unreasonable to expect her to meet the plaintiff's costs, I am not satisfied that he ought meet her costs, either from the date of the offer, or at all.
15 The order that each party should bear their own costs also covers the
costs of the taking of accounts. The first defendant was the accounting party and the figures she proposed were accepted. But there was nothing unreasonable in the plaintiff's requirement that she actually account. It was part of the continuum of these proceedings. In the circumstances, I am satisfied that each party ought bear their own costs of taking the account.
I invite the parties to bring in a minute of orders which reflects these
reasons.
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