[2012] WASC 474
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL
CITATION : SYNERGON CONSTRUCTIONS PTY LTD -v-
CUSACK GROUP PTY LTD [2012] WASC 474
CORAM : MASTER SANDERSON
HEARD : ON THE PAPERS
DELIVERED : 5 DECEMBER 2012
FILE NO/S : CIV 2486 of 2012
BETWEEN : SYNERGON CONSTRUCTIONS PTY LTD
Plaintiff
AND
CUSACK GROUP PTY LTD
ATF THE CUSACK GROUP TRUST
CUSACK NOMINEES PTY LTD
ATF THE CUSACK PROPERTY INVESTOR
TRUST
CUSACK PROPERTIES PTY LTD
ATF THE CUSACK TRUST
GEOFFREY BRENDON CLANCY and KYLIE MARIEE CLANCY
ATF THE CLAN FAMILY TRUST
KEDI TRADING PTY LTD
ATF THE KEDI DISCRETIONARY TRUST and
THE KEDI INVESTMENT TRUST and THE KEDI
PROPERTY TRUST
Defendants
Catchwords:
Costs - Indemnity costs ordered - Turns on own facts
Legislation:
Construction Contracts Act 2004 (WA)
Result:
Indemnity costs ordered
Category: B
Representation:
Counsel:
Plaintiff : Mr P D C Robinson
Defendants : Dr P R MacMillan
Solicitors:
Plaintiff : Williams & Hughes
Defendants : Birman & Ride
Case(s) referred to in judgment(s):
Nil
MASTER SANDERSON
1 MASTER SANDERSON : By originating summons filed 31 August 2012 the plaintiff sought the following orders:
1. The plaintiff have leave to enforce William Mark Jones' determination dated 18 August 2012 as a judgment of the court and to enter judgment for the plaintiff against the defendants in the amount of $1,223,784.11.
2. The defendants pay the plaintiff interest on the sum of $1,223,784.11 pursuant to s 32 of the Supreme Court Act 1935 (WA) from and including 30 August 2012.
3. The defendants pay the plaintiff's costs.
2 The matter first came on for mention on 27 September 2012. The parties provided a minute of agreed orders to take the matter through to a special appointment. These orders were:
1. By 5 October 2012 the defendants file and serve any affidavit in opposition to the originating summons.
2. By 12 October 2012 the plaintiff file and serve any affidavit in reply.
3. By 18 October 2012 the defendants file and serve any submissions in opposition to the originating summons.
4. By 23 October 2012 the plaintiff file and serve any submissions in support of the originating summons.
5. The matter be listed for hearing at a special appointment of 1 - 2 hours duration on 25 October 2012.
6. Costs be reserved.
3 The matter was called on again at the behest of the plaintiff on 16 October 2012. By that time the defendants should have filed any affidavit in opposition to the application and have filed their submissions. They had done neither. Counsel for the defendant, when questioned as to why the orders had not been complied with, indicated it was unlikely the application would be opposed but he was not in a position to consent to judgment. I pointed out to counsel, given programming orders had not been adhered to, there was no guarantee when the matter came on for hearing, any late affidavit would be admitted into evidence or any late submissions accepted. Counsel maintained the position the special appointment should go ahead.
4 It would seem just prior to the hearing on 27 September 2012 counsel for the defendants had raised with counsel for the plaintiff the possibility the plaintiff's solicitors had a conflict of interest. It would seem that claim was not pursued. There is nothing on the file to indicate why the suggestion might have been made. It was and is the plaintiff's position there is no conflict.
5 When the matter did come on for hearing on 25 October 2012 no objection was raised to the making of the orders sought in the originating summons. I did make one adjustment to par 2 of the orders. It seemed to me that interest should run from the date of judgment, not from the date of filing of the originating process. No explanation was provided by the defendants as to why the matter had not proceeded and why they had taken no steps to meet the programming orders.
6 During the hearing, counsel for the plaintiff sought indemnity costs. As that was the first occasion indemnity costs had been mentioned, I gave both parties the opportunity to file written submissions. Both parties have done so and it remains for me to make a costs order.
7 In my view an order for indemnity costs is warranted. I have reached that conclusion for two reasons. First, the Construction Contracts Act 2004 (WA) allows for what might be called a 'rough and ready' approach. It is designed to ensure money keeps flowing from a contractor to a subcontractor. Once a determination is made a party in whose favour it is made is entitled to have the determination registered as a judgment of this court. There are avenues available to a disgruntled party allowing them to resist payment. They can for instance seek a stay of enforcement of the judgment. But it is difficult to see how registration of the judgment itself can be resisted. Accordingly parties in the position of the defendants if properly advised would not have resisted this application. Secondly, it looks very much as though the defendants used the processes of the court to gain an extension of time for complying with the determination. They were able to put off the evil day between 30 August 2012 and 25 October 2012 - which equated to almost two months. Given time is of the essence under the Construction Contracts Act regime, that extension amounts to an effective perversion of the intention of the Act. Absent some explanation as to why the defendants pushed the matter through to a special appointment and then did not take any steps in relation to the appointment, an indemnity costs order is justified.
8 The order for costs will be in the following terms:
The defendants are to pay the plaintiff's costs of the originating summons and all reserved costs on a full indemnity basis, save with respect to those costs which have been unreasonably incurred, such costs to be taxed if not agreed.