Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd

[2018] WASCA 185

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Construction of costs orders
4. › General and specific costs orders
5. › Overlapping costs
6. › Common items and mixed items
7. › Whether evidence relevant to both successful and failed claims
8. › Whether objective or subjective test for attributing costs
9. › Rules of the Supreme Court 1971 (WA), O 66 r 1(3), r 2(a)
1. Practice and Procedure
2. › Costs
3. › Damages in lieu of specific performance
4. › Whether claim for damages in lieu of specific performance must be expressly pleaded
5. › Whether court may award damages in lieu even absent express claim
6. › Supreme Court Act 1935 (WA), s 25(10)
1. Remedies
2. › Damages in lieu of specific performance
3. › Lord Cairns Act jurisdiction
4. › Whether damages available where not expressly claimed in writ or pleading
5. › General principle that court grants appropriate remedy on facts proved
6. › Supreme Court Act 1935 (WA), s 25(10)
1. Practice and Procedure
2. › Costs
3. › Special costs order
4. › Whether scale limits inadequate because of unusual difficulty, complexity or importance
5. › Legal Profession Act 2008 (WA), s 280(2)

Quick Take

When general and specific costs orders overlap, the test for determining whether costs are 'common items' (payable under the general order) is objective: whether the evidence relates to an issue arising on both the claims subject to the general order and the claims subject to the specific order. A subjective inquiry into the motivation of the parties' representatives for incurring costs is not required. Damages in lieu of specific performance remain available under s 25(10) of the Supreme Court Act 1935 (WA) even where not expressly claimed in the writ or pleading.