SPIERS EARTHWORKS PTY LTD -v- LANDTEC PROJECTS CORPORATION PTY LTD [2010] WASCA 43 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION : SPIERS EARTHWORKS PTY LTD -v- LANDTEC PROJECTS CORPORATION PTY LTD [2010] WASCA 43 (S)

CORAM : PULLIN JA

KENNETH MARTIN J

HEARD : 2 FEBRUARY 2010

DELIVERED : 2 FEBRUARY 2010

SUPPLEMENTARY

DECISION : 10 JUNE 2010

FILE NO/S : CACV 83 of 2009

BETWEEN : SPIERS EARTHWORKS PTY LTD

Appellant



AND



LANDTEC PROJECTS CORPORATION PTY LTD

Respondent

ON APPEAL FROM:



Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WAGER DCJ

File No : CIV 495 of 2007

Catchwords:

Practice and procedure - Costs - Reference under O 66 r 45 - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Referred question answered

Category: B

Representation:

Counsel:

Appellant : Mr B P Wheatley

Respondent : Mr A Metaxas

Solicitors:

Appellant : Mossensons

Respondent : Metaxas & Hager

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



Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2010] WASCA 43

(Page 3)



1 REASONS OF THE COURT: The registrar, as taxing officer, has referred a question to the court pursuant to O 66 r 45 as follows:

Should items 1 to 7 inclusive of the respondents bill of costs dated 15 February 2010 be taxed under item 22(a), (b), (g) and (k) of the Supreme Court costs scale or should they be taxed under item 22(e) of that scale?

2 The respondent's bill of costs relates to proceedings in the Court of Appeal. Items 1 to 7 of the respondent's bill of costs read as follows:

No	Description	Date	Item	Amount
1.	Notice of Respondent's Intention	03.08.09	22(a)	$300.00
2.	Respondent's Answer including perusing appellant's case, drafting and preparing respondent's answer - see Schedule A	09.10.09	22(b)	$15,060.00
3.	Respondent's Amended Answer including perusing appellant's amended case, drafting and preparing respondent's amended answer - see Schedule B	13.11.09	22(b)	$2,730.00
4.	Directions hearing before Registrar	09.10.09 12.01.10	22(g)	$396.00 $275.00
5.	Getting up appeal for hearing - see Schedule C, exceeding but say	-	22(f)	$3,000.00
6.	Counsel fee on hearing including preparation (5 hrs preparation @ $396 per hour, 1.5 hrs hearing @ $396 per hour) exceeding but say	02.02.10	22(g)	$594.00
7.	Solicitor attending appeal (1.5 hrs hearing @ $396)	02.02.10	22(k)	$594.00

3 The background is that the appellant appealed to this court against two interlocutory decisions of Wager DCJ in the District Court. One

(Page 4)

appeal concerned a decision of her Honour refusing to accept an affidavit submitted on behalf of the appellant in support of its application to amend its reply and counterclaim, and the other decision was a decision by her Honour refusing the appellant's application for leave to amend its reply and counterclaim. These decisions were made after her Honour had reserved her decision following the completion of the evidence and submissions in a trial which had been conducted before her Honour but before the delivery of judgment.

4 The appeal against the two interlocutory decisions was filed out of time and so the appellant sought an application for an extension of time. Because the appeal was not a final judgment it was necessary for the appellant to obtain leave to appeal. Under the Supreme Court (Court of Appeal) Rules 2005 (WA), an appellant is required to file an appeal notice in accordance with Form 2 and to indicate on the form whether leave to appeal is necessary, why leave is necessary and whether an extension of time is needed. If the form is marked to indicate that an extension of time is necessary, the matter is usually listed for directions before a judge of the Court of Appeal. That happened in this case on 31 August 2009 when Newnes JA made an order that the application for an extension of time within which to appeal be referred to the hearing of the appeal. Likewise, the application for leave to appeal was referred to the hearing of the appeal. Subsequently, the appellant filed the appellant's case and the respondent filed an answer. Orders were also made by the acting appeal court registrar requiring filing the draft appeal book indexes and the filing of the amended appellant's case and respondent's answer.

5 On 2 February 2010, the application for leave to appeal, the application for an extension of time and the appeal were heard together. The court in its reasons for decision: Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2010] WASCA 43 considered the grounds of appeal and reached the conclusion that there was no merit in them as a result of which an extension of time could not be justified and hence the only formal order made was that the application for an extension of time was dismissed. An order was made that the appellant pay the costs of the appeal.

6 The appellant prepared for and argued the appeal as well as the application of an extension of time and the application for leave. As a result the respondent is entitled to have items 1 to 7 (save for item 4) of its bill of costs dated 15 February 2010 taxed pursuant to items 22(a), (b), (g) and (k) and the question referred to the court is answered accordingly. Item 4 should be taxed under item 22(e). Written submissions filed by the

(Page 5)

appellant regarding this reference contended that a comment made by the trial judge in the District Court in reasons disposing of the trial between the parties was relevant to this reference. The comment has no bearing on the question which has been referred to the court. The question referred concerns the order made in this court concerning costs. The order is unambiguous.