Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited [No 12]

[2014] WASC 149 (S)

WRIGHT PROSPECTING PTY LIMITED -v- HANCOCK PROSPECTING PTY LIMITED [No 12] [2014] WASC 149 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 149 (S)
Case No:	CIV:1279/2001	Heard:	ON THE PAPERS
Coram:	LE MIERE J	Delivered:	12/09/14
No of pages:	6	Judgment Part:	1 of 1
Result:	Application for costs granted in part
Category:	B
PDF Version

Parties:	WRIGHT PROSPECTING PTY LIMITED (ACN 69 008 676 417) HANCOCK PROSPECTING PTY LIMITED (ACN 69 008 676 417)
Catchwords:	Costs Legal principles Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1(2), O 66 r 1(3)
Case References:	Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216 Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216 (S) Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited [No 12] [2014] WASC 149 Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 11] [2011] WASC 74 Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 9] [2010] WASC 44

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : WRIGHT PROSPECTING PTY LIMITED -v- HANCOCK PROSPECTING PTY LIMITED [No 12] [2014] WASC 149 (S) CORAM : LE MIERE J HEARD : ON THE PAPERS DELIVERED : 12 SEPTEMBER 2014 FILE NO/S : CIV 1279 of 2001 BETWEEN : WRIGHT PROSPECTING PTY LIMITED (ACN 69 008 676 417)

Plaintiff

AND

HANCOCK PROSPECTING PTY LIMITED (ACN 69 008 676 417)
Defendant

Catchwords:

Costs - Legal principles - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1(2), O 66 r 1(3)

Result:

Application for costs granted in part

Category: B

Representation:

Counsel:

Plaintiff : No appearance
Defendant : No appearance

Solicitors:

Plaintiff : Clayton Utz
Defendant : Corrs Chambers Westgarth

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

Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216 (S)
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited [No 12] [2014] WASC 149
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 11] [2011] WASC 74
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 9] [2010] WASC 44



1 LE MIERE J: On 5 March 2010 Murray J delivered reasons for decision: Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 9] [2010] WASC 44. Following further submissions concerning the orders that should be made to give effect to his Honour's reasons for decision Murray J delivered supplementary reasons on 22 March 2011: Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 11] [2011] WASC 74. An appeal was subsequently dismissed and a cross-appeal allowed in part: Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216 and Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216 (S). By notice of motion dated 2 August 2012 the plaintiff, WPPL, applied for orders to enforce orders made by Murray J (Final Orders) by requiring the defendant, HPPL, to execute a deed entitled Deed of Assignment of Rhodes Ridge Joint Venture Share. WPPL filed and served five outlines of submissions and HPPL filed and served three outlines of submissions before WPPL filed a further amended substituted notice of motion on 4 April 2014 in which WPPL sought orders to the effect that HPPL give effect to the Final Orders by executing the deed described as Rhodes Ridge Joint Venture Interest Deed of Assignment and Assumption (the Deed of Assignment). On 30 April 2014 I gave reasons for ordering that HPPL execute the Deed of Assignment: Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited [No 12] [2014] WASC 149. I made orders for the exchange of affidavits and submissions on the question of costs and ordered that the question of costs be dealt with on the papers. These reasons deal with the question of the costs of WPPL's notice of motion.

WPPL contentions

2 WPPL seeks orders that HPPL pay WPPL's costs of and incidental to the application. In essence, WPPL says that it was successful on its notice of motion and, in accordance with the usual order that costs follow the event, HPPL should pay its costs of the notice of motion.

HPPL contentions

3 HPPL submits that the court should make the following orders:

1. Save as provided for in orders 2 and 3 below, the Defendant to pay the Plaintiff's costs of the Plaintiff's Notice of Motion dated 2 August 2012.

2. The Plaintiff bear its own costs of and incidental to the preparation and reliance on the form of deed annexed to the:


a. Notice of Motion dated 2 August 2012;

b. Amended Notice of Motion dated 1 February 2013;

c. Substituted Notice of Motion dated 9 October 2013; and

d. Amended Substituted Notice of Motion dated 29 January 2014.


3. The Plaintiff pay the Defendant's costs thrown away by reason of the amendments to the Notice of Motion dated 2 August 2012 brought about by the filing of and reliance on the:

a. Amended Notice of Motion dated 1 February 2013;

b. Substituted Notice of Motion dated 9 October 2013;

c. Amended Substituted Notice of Motion dated 29 January 2014; and

d. Further Amended Substituted Notice of Motion dated 4 April 2014.

4 HPPL says that the basis of [2] and [3] of its proposed orders is as follows. First, WPPL should not be entitled to recover its costs of and incidental to the preparation of and reliance on the forms of deed annexed to each of the motions dated 2 August 2012, 1 February 2013, 9 October 2013 and 29 January 2014, being forms of deed which were abandoned by WPPL. Secondly, WPPL should be ordered to pay HPPL's costs of dealing with each of those deeds. HPPL relies upon the rule that an amending party is obliged to pay the other party's costs thrown away by reason of amendment, which HPPL says should apply by analogy to this application.

WPPL response

5 WPPL says that the usual rule as to costs thrown away as a result of an amendment to pleadings does not apply to this application. No indulgence was sought. Further, this is not a case where the plaintiff failed on a discrete issue or group of issues. WPPL says that it was entirely successful. WPPL says that it will be very rare that a successful party will be deprived of some or all of its costs, let alone be ordered to pay some of the unsuccessful party's costs and submits that that would generally require some form of misconduct: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [69] (McHugh J).

Costs - legal principles

6 The court has a discretion in relation to orders for costs. The rules guide the exercise of the discretion in normal cases. The general rule is that the successful party to an application recovers its costs. Ordinarily this is a just outcome because the party who turns out to have unjustifiably either brought another party before the court, or given another party cause to have recourse to the court to obtain his rights, should be required to recompense that other party in costs. A successful party may properly be deprived of an award of costs in appropriate circumstances or, in exceptional cases, may be ordered to pay the unsuccessful party's costs.

7 Order 66 r 1(2) of the Rules of the Supreme Court 1971 (WA) provides that if the court is of opinion that the conduct of a party either before or after the commencement of the litigation has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs wholly or in part and may further order him to pay the costs of an unsuccessful party either wholly or in part. Order 66 r 1(3) provides that where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs the court may order such party to pay the costs of such issue or issues. An issue does not mean the precise issue in the technical or pleading sense but any disputed question of fact or issue of law. A party will not get costs merely because of his or her success on particular issues.

Decision

8 WPPL unnecessarily added to the costs of the application by drafting forms of deed prior to the Deed of Assignment which did more than give effect to the Final Orders and gave rise to contentious issues. However, the primary grounds on which HPPL resisted executing any form of deed of assignment was that it was not required to sign any deed and secondly that the terms of article 11.07(a) of the Rhodes Ridge Joint Venture Agreement provided a reason not to sign any deed. HPPL was unsuccessful on those grounds which applied to the application from the outset. WPPL should have its costs of the application other than any costs in relation to the preparation, drafting and engrossing of the forms of deed which it did not press.

9 The costs order will be to the effect that the defendant pay the plaintiff's costs of the plaintiff's notice of motion except for the costs of and incidental to the preparation, drafting and engrossing of the form of deed annexed to the notice of motion dated 2 August 2012, amended notice of motion dated 1 February 2013, substituted notice of motion dated 9 October 2013 and amended substituted notice of motion dated 29 January 2014.