WITCOMBE -v- TALBOT & OLIVIER [No 2] [2009] WASC 173 (S)
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 173 (S) | |
| Case No: | CIV:2485/2004 | 24-27 & 30 MARCH, 1 APRIL 2009 AND ON THE PAPERS | |
| Coram: | BEECH J | 19/06/09 | |
| 27/07/09 | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Costs orders made | ||
| B | |||
| PDF Version |
| Parties: | GLENYS JUNE WITCOMBE as Executrix of the Estate of KEITH MALCOLM WITCOMBE (DEC) TALBOT & OLIVIER |
Catchwords: | Costs Plaintiff awarded nominal damages for breach of contract Negligence claim dismissed Costs of action O 24A offer by defendant Offer not accepted by plaintiff Defendant obtained a better result by judgment after trial Appropriate costs orders Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA) O 24A r 10 |
Case References: | Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394 Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Grant v Brewarrina Shire Council [No 3] [2003] NSWLEC 108 Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak [2006] NSWSC 1149 MLW Technology Pty Ltd v May [No 4] [2003] VSC 293 Nexus Minerals NL v Brutus Constructions Pty Ltd [1997] FCA 926; (Unreported, Full Court, Federal Court, 10 September 1997) Ng v Chong [2005] NSWSC 385 Permanent Building Society v Wheeler [No 2] (1993) 10 WAR 569 Stewart v Biodiesel Producers Ltd [2009] WASC 145(S) Talbot & Olivier v Witcombe [2006] WASCA 87; (2006) 32 WAR 179 Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166 Witcombe v Talbot & Olivier [No 2] [2009] WASC 173 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 27 JULY 2009 FILE NO/S : CIV 2485 of 2004 BETWEEN : GLENYS JUNE WITCOMBE as Executrix of the Estate of KEITH MALCOLM WITCOMBE (DEC)
- Plaintiff
AND
TALBOT & OLIVIER
Defendant
Catchwords:
Costs - Plaintiff awarded nominal damages for breach of contract - Negligence claim dismissed - Costs of action - O 24A offer by defendant - Offer not accepted by plaintiff - Defendant obtained a better result by judgment after trial - Appropriate costs orders - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 24A r 10
(Page 2)
Result:
Costs orders made
Category: B
Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : GV Lawyers
Defendant : Lavan Legal
Case(s) referred to in judgment(s):
Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951]…
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Details
- AGLC
- Witcombe v Talbot & Olivier [No 2] [2009] WASC 173 (S)
- Case
- [2009] WASC 173 (S)
- Decision Date
CaseChat Overview and Summary
In this case, Witcombe, the plaintiff, sought damages against Talbot & Olivier, the defendants, for breach of contract and negligence. The dispute came before the court for consideration of the appropriate costs to be awarded to the parties. The plaintiff was awarded nominal damages for the breach of contract but the negligence claim was dismissed. The matter proceeded to a determination of costs, where the plaintiff had not accepted an offer made by the defendants under Order 24A of the Uniform Civil Procedure Rules.
The court had to decide whether the costs order should reflect the fact that the plaintiff had rejected the defendants' offer and subsequently received a lesser outcome at trial. The legal issue was whether the costs should be awarded in a manner that reflected the plaintiff's failure to accept the offer and the outcome at trial. The court noted that the appropriate costs orders must turn on the facts of the case.
The court considered that since the plaintiff rejected the offer and ultimately obtained a lesser outcome, it was appropriate to make costs orders that reflected this. The court determined that it was not necessary to penalise the plaintiff for rejecting the offer, but rather to ensure that the costs orders reflected the actual outcome of the case. The court found that the plaintiff should bear their own costs from the date of the offer and the defendants should bear the costs of the trial. The court made appropriate costs orders based on these findings.
The court had to decide whether the costs order should reflect the fact that the plaintiff had rejected the defendants' offer and subsequently received a lesser outcome at trial. The legal issue was whether the costs should be awarded in a manner that reflected the plaintiff's failure to accept the offer and the outcome at trial. The court noted that the appropriate costs orders must turn on the facts of the case.
The court considered that since the plaintiff rejected the offer and ultimately obtained a lesser outcome, it was appropriate to make costs orders that reflected this. The court determined that it was not necessary to penalise the plaintiff for rejecting the offer, but rather to ensure that the costs orders reflected the actual outcome of the case. The court found that the plaintiff should bear their own costs from the date of the offer and the defendants should bear the costs of the trial. The court made appropriate costs orders based on these findings.
Orders
Orders of the court
Costs orders made
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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