Coefficiency Pty Limited v Workforce International Pty Limited

Court of Appeal (NSW)|2005-08-31|Before: Beazley JA, Ipp JA, Bryson JA, Mr P

Coefficiency Pty Limited v Workforce International Pty Limited [2005] NSWCA 300 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Beazley JA at 34; Ipp JA at 34; Bryson JA at 1

DECISION: Leave granted, appeal dismissed, order varied on Cross-appeal, see [35].

CATCHWORDS: CONTRACT - termination - whether termination procedure was followed - decision on terms of non-standard contract - no question of principle.

LEGISLATION CITED: Local Court Civil Claims Act 1970

Progressive Mailing House v Tabali Pty Limited (1985) 157 CLR 17 at 33. CASES CITED: Shevill v Builders Licensing Board (1982) 149 CLR 620 at 625, 627. Laurinda Pty Limited v Capalaba Park Shopping Centre (1989) 166 CLR 623 at 6333-634.

Coefficiency Pty Limited Appellant PARTIES: Workforce International Pty Limited Respondent

Mr M. Lawson Claimant COUNSEL: Mr P. Walsh Opponent

Gadens Lawyers Claimant SOLICITORS: Church & Grace Opponent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

BEAZLEY JA IPP JA BRYSON JA

Wednesday 31 August 2005 COEFFICIENCY PTY LTD v WORKFORCE INTERNATIONAL PTY LTD Judgment 1 BRYSON JA: The claimant, Coefficiency, was the plaintiff in the Local Court where it sued the opponent, Workforce International, in a statement of liquidated claim dated 11 April 2002 for $30,449 damages. The cause of action was stated in the further amended statement of liquidated claim filed on 20 May 2003 (White book 34-35) to this effect. 2 The parties entered into a contract for the provision and use of a disaster recovery centre on or about 30 September 2000. The term of the contract was thirty six months. Workforce breached the contract about 20 February 2002. Notice of breach and termination were sent to the defendant by way of letter on 6 February 2002. It was also and apparently separately alleged that Workforce unlawfully terminated the contract on or about 14 February 2002. 3 The further amended statement of liquidated claim does not allege that Workforce was in breach of contract by repudiatory conduct which was followed by acceptance by Coefficiency of that repudiation. The Magistrate's decision was not based on any such contentions. Workforce brought a cross claim which the Magistrate dismissed and there was no appeal to the Court of Appeal about the cross claim. 4 In relation to what appears to have been in issue on the claim and cross claim, the proceedings before the Local Court were remarkably complicated and extensive. 5 The contract of 30 September 2000 (white book 261) by cl 4 gave Workforce a guarantee "...for the availability and use of the Coefficiency disaster recovery centre subject to invoking the declared disaster procedure." 6 In the contemplated working of the agreement, cl 11, the Co-Efficiency disaster recovery centre facility was to be set up and maintained to provide Workforce with a temporary workplace when Workforce invoked disaster notification procedure. 7 By cl 12, Coefficiency was obliged to supply and put in place equipment for use by Workforce during a declared disaster. The equipment was listed, and it was office equipment, and basic equipment to service Workforce's computer equipment. It was contemplated by cl 6 that Workforce was to house equipment owned by Workforce at the disaster recovery centre and would be responsible for its maintenance, although Coefficiency might also provide and charge for maintenance service. 8 The obligations of Workforce under the contract were few. Workforce was to pay subscription fees of $1,500 per month with an annual CPI review, cl 8. Workforce was to see to its software being properly licensed, cl 10. 9 Under cl 13 there was to be a notification fee for each disaster, a minimum of $1,500, and a usage fee of $1,200 per day, rising after thirty days, while ever Workforce occupied the disaster recovery centre. 10 Workforce had responsibilities under cl 15 and 16 relating to its own equipment. There never was a disaster notification. The contract did not create any obligation on Workforce to put any of its own equipment in place in the disaster recovery centre or to keep it there. It was not a breach of an obligation under the contract for Workforce to have no equipment there or to remove equipment. 11 Although there was some reference to repudiation in the course of the hearing on appeal and as we were told in the proceedings before the Magistrate and before Master Malpass, the principles and application of the law of repudiation appear to me to have been outside the issues raised by the terms of the statement of liquidated claim as amended, and also outside the issues determined by the learned Magistrate. I see no occasion on this hearing to examine closely the principles on what constitutes repudiation followed by acceptance or the remedies which follow. These subjects are dealt with in Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 33 by Mason J, in. Shevill v Builders Licensing Board (1982) 149 CLR 620 at 625, 627, and Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 at 633-634. 12 The focus of the decision of the Magistrate was termination, as alleged, not at all clearly, in the first paragraphs of the statement of liquidated claim. The decision was not focused on the altogether obscure allegation that Workforce unlawfully terminated the contract on or about 14 February 2002. I have not seen or heard in the course of argument any basis for consideration of that allegation. 13 The contract provides in cl 18 (White book 264) for termination in these words. Either party may immediately terminate this contract in whole or in part by written notice to the other party if the other party breaches a provision of this contract and such breach is not remedied within fourteen days after receipt of written notice of the breach. In this procedure there is to be a written notice of the breach. 14 The next step follows if the breach is not remedied within fourteen days after receipt of that written notice. Findings of the Magistrate establish that the written notice of breach was dated 6 February 2002 and was received by Workforce on 11 February 2002. In the workings of cl 18, the contract may then be terminated by written notice. It is important to know what the written notice of termination says because the contract might be terminated in whole or it might be terminated in part. 15 At the hearing before the Magistrate there was some consideration of whether the right of termination would still continue to exist if the breach were remedied later than the fourteen days specified. This difficult question is not important for the outcome. 16 Clause 18 does not confer any right to damages arising out of a termination. If as cl 18 provides, the contract were terminated, no further obligations or claims to damages could arise. On the other hand, breaches committed up to the date of termination could still lead to damages claims. As it is clear and findings establish that any money outstanding when the notice dated 6 February was delivered was paid on or about 20 March, it is difficult to see how damages of $30,448, which the Magistrate awarded, could have been assessed. On the face of things the only obligation which Coefficiency could enforce would be any further instalment which fell due by the date of termination (if there was a termination, and it is the underlying theory of Coefficiency's case that there was). 17 The appeal to the Supreme Court heard by Master Malpass was an appeal under s 69(2) of the Local Court Civil Claims Act 1970. As that subsection provides, appeal lay only on the ground that the decision was erroneous in point of law. This confines closely the consideration which it was appropriate to give to the issues on appeal before Master Malpass and again before the Court of Appeal. 18 What is asserted to have been a notice of breach under cl 18 is a letter on the letterhead of Coefficiency bearing date 6 February 2002, (White book 317), which refers to the disaster recovery contract and says, I am writing to advise that you are in breach of the terms and conditions of your contract with Coefficiency for the provision of a Disaster Recovery Facility. In accordance with the terms of this contract you are required to pay Coefficiency within 30 days from the date of each monthly invoice. Invoice SJ-100465 for $1,650.00 was issued on 11 December 2001 and should have been paid on or before 10 January 2002. You are advised that should payment not be received within 14 days Coefficiency is entitled to terminate the contract without further notice. 19 Solicitors who at that time acted for Coefficiency sent Workforce a letter of 6 March 2002 (White book 328) as follows. We act for Coefficiency Pty Ltd. Workforce International Pty Ltd entered into a contract with our client on or about 30 September 2000 with respect to the provision by our client of a disaster recovery centre at Newtown. On or about 14 February 2002 Workforce International Pty Ltd terminated the contract by non-payment of fees and vacating the premises. Our client has suffered loss and damages as a consequence of your breach of the contract. (A paragraph set out an asserted array of damages totalling $254,785.94). Unless a bank cheque payable to Coefficiency Pty Ltd for the sum of $254,785.94 is received by at our office by close of business, Wednesday 20 March 2002, we are instructed to commence recovery proceedings, including interest, damages and legal costs arising from your breach of the above contract. 20 The findings of the Magistrate (White 141 line 40) which might bear on termination under cl 18 are to these effects. On 25 March Workforce sent a letter to Coefficiency which said, wrongly as the Magistrate found, that Workforce did not receive Coefficiency's letter of 6 February 2002 and also claimed that Workforce had been locked out of the premises and that service had not been provided under the contract. The letter said, (White 332), We refer to your telephone discussion with Robert Dobbie of our office on 25 March 2002 and the agreement between Workforce International Pty Ltd ("Workforce") and your company relating to the supply of a Disaster Recovery Centre to Workforce by your company. You have advised that you consider that the agreement has been terminated as Workforce International Pty Limited did not remedy a breach of a provision of the agreement within 14 days of receipt of a written notice of the breach as required by Clause 18 of the agreement.

(After referring to receiving a copy of the letter of 6 February, the letter went on): We advise that we have no record of the receipt of that letter and, accordingly, we do not consider that we were given written notice of any breach of the agreement on or about 6 February 2002. We confirm that we received written notice of an alleged breach of the agreement from your legal advisers on 8 March 2002. Moreover our records indicate that Workforce made a payment of $5,199.62 by electronic transfer.

(The letter went on to give details of the payment, the payment being undisputed as a finding of the Magistrate shows). The letter went on to say, As Workforce paid the amounts outstanding in relation to the Disaster Recovery Centre, we consider that we have not breached the agreement and the agreement has not been terminated.

The letter then went on to assert that requests to be given access to reinstal Workforce's equipment removed for maintenance and configuration had been made but had not been responded to, and to assert a breach of the agreement by Coefficiency in failing to give reasonable access and to say, ...We intend to terminate the agreement where you have not given Chris Villy access to the centre within 14 days of receipt of this letter. We also do not consider that you have complied with your legal obligations in relation to services to be provided under the contract and services previously provided by your company. 21 At some time after the receipt of that letter and prior to an email sent by Mr Villy on 27 March, there was a conversation between Mr Jones for Coefficiency and Mr Dobbie for Workforce to the effect that Coefficiency indicated that the contract had been terminated. (Findings at White book 141 lines 48-52.) The Magistrate accepted that this conversation took place. It was not asserted and it was not found that Mr Jones then referred to a written notice of determination. 22 The Magistrate referred to and appears to have found that it was Mr Jones' view that as of 26 February 2002 the contract had been terminated and that a fresh contract would need to be entered into by the parties. The findings also show that on 25 March, after Workforce forwarded its letter to Coefficiency to which I have referred, Coefficiency decided not to allow Workforce to return under the terms of the existing contract, and the letter of 25 March had a bearing on that decision. The Magistrate's findings referred to the conversation before 27 March in which Mr Jones said to the effect that the contract was at an end and had already terminated. 23 In the Magistrate's reasons for disposition (White 144 lines 45-145 line 39), significant facts referred to were to these effects. It was not in dispute that Workforce was in breach of the contract between 6 February and 20 March 2002 owing to non-payment of fees. Workforce's letter of 25 March 2002 shows that Workforce knew that Coefficiency then considered that the agreement had been terminated because Workforce did not remedy the breach within fourteen days of receiving the notice of breach as required by cl 18. Further, Mr Dobbie knew from the conversation between 25 and 27 March that Mr Jones was of the view that the contract had been terminated and a new contract was being offered. 24 The Magistrate said (White 145, line 28 and following): It is my view on the defendant's own letter dated 25 March 2002 that they were aware that the plaintiff had unequivocally terminated the contract prior to 25 March 2002. The only document that one can refer to prior to that is the plaintiff's solicitor letter dated 6 March 2002. I am therefore satisfied that the contract was terminated prior to the payment of moneys by the defendant on 20 March 2002. 25 In my opinion this holding is erroneous. Workforce's letter of 25 March does not acknowledge that there had been an effectual termination by Coefficiency. It does no more than show that Workforce knew that Coefficiency was taking the position that there had been. As the Magistrate said, the only document that can be referred to is the letter of 6 March 2002. If there is to be an effectual termination under cl 18, the terms of cl 18 must be complied with: either party may immediately terminate the contract in whole or in part by written notice to the other party. If a notice is to conform with cl 18 it must be in writing and it must indicate that the contract is terminated. It is probably necessary that it must indicate that the contract is immediately terminated and it must say whether it is terminated in whole or in part. 26 There is no room for a doubtful or ambiguous indication to fulfil the requirements of cl 18 because of the effect of such a notice on the rights of the parties. Asserting that a contact had already been terminated or had already come to an end in some way, or that it had been repudiated at an earlier time than the notice of termination, would not comply with this requirement. 27 The letter of 6 March falls short in many respects. It does not assert that it effects a termination, but asserts that there had already been a termination on 14 February. It does not assert that there was a termination by Coefficiency, but alleges that there had been a termination by Workforce. It alleges that that termination had taken place at a time and in circumstances which could not comply with cl 18. The claims for damages extravagant as they are, point away from reliance on termination under cl 18. A hypothetical reasonable person receiving the letter and considering what affect it had on rights under the contract would not and in my opinion could not regard it as effecting a termination under cl 18. 28 For this reason the Magistrate was in error and this was an error of law. Reasonable persons charged with finding the facts could not, in my opinion, have found on the basis of that letter that the contract was terminated; such persons could not have reasonably decided that the letter of 6 March did what a termination notice under cl 18 is required to do. For this reason the Magistrate's decision was erroneous in point of law. It was, and it should have been set aside on appeal; that is what the learned Master did. 29 The respect in which the Master's decision is in my opinion open to doubt is that I am unable to see and in my view there is no ground upon which the Master should have returned the proceedings for further dealings in the Local Court. The cause of action indicated in the statement of liquidated claim and relied on at the hearing was finally disposed by the learned Master's decision on the lack of effect of the letter of 6 March. The cross-claim was dismissed and it has been finally disposed of, so there is nothing further that Workforce could ask the learned Magistrate to do. 30 If the proceedings went back to the Magistrate there would on the issues which were before the Magistrate and were determined by her, so far as I can understand from the terms of the Magistrate's decision, be nothing more to dispose of. There could only be something to do if some other amendment were made and some other ground than that upon which the Magistrate ruled were introduced for determination. I cannot see that that would be a just arrangement at all, bearing in mind the many opportunities including several amendments to the statement of claim and at the extended hearing which earlier existed to state fully the basis of the claim on which adjudication was called for and to bring about debate on any relevant evidence. The possibility that there might be a further opportunity to amend and further consideration of some alleged cause of action upon which Coefficiency has thus not far obtained adjudication does not appear to me to be a possibility which should be protected by an order made on appeal. I see no claim in justice to a further amendment. Further, I cannot see that an opportunity to make a further amendment or to make an order on appeal which would open up an opportunity to ask for one is within the limited basis upon which appeals may be dealt with under s 69(2) of the Local Court (Civil Claims) Act 1970. The respect in which the learned Master's decision ought to be corrected is, in my opinion, the respect that the proceedings were remitted for further hearing. 31 Counsel for Workforce International has applied orally during the course of the hearing for leave to cross appeal, and has produced a notice of cross appeal which seeks only that the judgment of the Master be set aside in so far as it remits the matter to the Local Court. 32 In my view there is a strong and clear claim for this modification to the order which the Master made. In my opinion this Court of Appeal should make the following orders:

Leave to appeal is granted. 2. Appeal dismissed with costs. 3. Leave to cross appeal is granted to Workforce International Pty Limited. 4. The Court directs that notice of cross appeal in the form of the document shown to the Court during the hearing be filed and served within seven days. 5. Orders one and two in the notice of cross appeal. 33 I have not yet addressed the claims for costs in cross appeal. It appears to me that the cross appeal itself should not attract a general order for the costs of the cross appeal as the relatively minor attendances involved in it were dealt with in the course of dealing with the application for leave to appeal and recovery of costs by the cross appellant should be limited to court fees. 34 BRYSON JA: I should ask counsel did the learned Master's orders deal with costs in the Local Court and if so, in what way? WALSH: No they did not.

BEAZLEY JA: The orders as I understand it the cost order made by the Master was that the cost order of the Magistrate be set aside, but the Master did not appear to make an order as to what the cost order ought to be.

BRYSON JA: That leads me to say that it is my view that upon the cross appeal the Court should make order three, but not order four. I have already stated a limited version of order four. LAWSON: Did your Honour propose to make order three. BRYSON JA: Order three yes. LAWSON: Can I be heard on that your Honours. The proceedings in the Local dealt with a principal claim by the plaintiff in the Court below and by the defendant in the Court below on cross appeal. The net result is that in the Local Court the statement of claim failed and the cross claim failed. Also when your Honours examine the transcript your Honours will see that the bulk of the proceedings in the Local Court were taken up with arguments on the cross claim, not on the statement of claim. BRYSON JA: Are you asking that all of three be modified so as to refer only to the cross appellant's costs of its own claim in the Local Court. LAWSON: What I'm suggesting is this-- WALSH: I should say that's all I was intending to seek in these orders, perhaps they are more widely expressed. BRYSON JA: I'm afraid I didn't see what Mr Lawson has observed which is very substantial. LAWSON: My client has failed on the cross claim in the Local Court, it doesn't seek to disturb the costs order against it in respect of that cross claim. It's only in respect of the plaintiff's claim against my client that the cost order is sought. BEAZLEY JA: Perhaps we should clarify something because an examination of the transcript in the Local Court indicates that the parties had time in which to make submissions in relation to costs. Are the parties able to inform us what the cost orders were that were made by the Magistrate. LAWSON: Yes the plaintiff was to have the cost of the proceedings on the basis of the Local Court Magistrate's findings and rulings the plaintiff succeeded on all fronts as it were. BEAZLEY JA: So the plaintiff was to have the costs of the claim and the cross claim. LAWSON: Yes. Might I suggest that the appropriate be one of two things, the statement of claim and the cross claim were agitated both in the Local Court and before the learned Master. Before the Master there was an appeal as to the Magistrate's findings dismissing the cross claim. Could I suggest one of two orders, the first being that in relation to the whole of the proceedings the opponent in this Court is to have the costs of the statement of claim and the claimant in this Court is to have the costs of the cross claim wherever those particular claims manifested themselves. Alternatively, it seems to me that the extra time taken up in the Local Court agitating the cross claim would be offset by the proceedings in this Court agitating only the statement of claim and the proceedings before the Master being neutral as to costs because both claims were agitated with success on both sides. My suggestion would be that that being the case, considering the whole of the both issues the most appropriate order might be that each party is to bear their own costs of the whole of the proceedings because that would be in that affect in any event of the first order.

BRYSON JA: What's the position now, that the Master set aside the costs order in the Local Court. LAWSON: The position having done that is that either your Honours will have to decide what the costs should be in the Local Court. BRYSON JA: Before I approach that, if we do nothing the Master set aside the costs orders relating to both the claim or cross claim. BEAZLEY JA: Because there's a singular order made by the Court below, is that correct?

LAWSON: Yes. BEAZLEY JA: When you say that those claims were agitated before the Master that's not strictly correct because there was no appeal from the dismissal of the cross claim. WALSH: Yes that's correct, very little was said about it but if there was-- BRYSON JA: I hadn't understood that. WALSH: My friend is right very little was said about it formally that's what the issue was before the Master. BEAZLEY JA: Can I just say something, did you put on a formal pleading before the Master. LAWSON: Yes, it didn't go anywhere but it was there and I can't say it wasn't. Your Honours will notice at para 34 of the Master's decision he then deals with the plaintiff's cross claim and the plaintiff being the opponent in this Court he then deals with the balance of the cross claim and makes a finding and on view of it the cross claim would attract damages of only $300 and says the claim based upon contract was hopeless and that's a decision in relation to cross claim. BRYSON JA: He doesn't refer in terms of a cross appeal but you've told us that there was a cross appeal. LAWSON: Yes. BRYSON JA: Unless and until the Court of Appeal orders otherwise, the costs orders the Magistrate set aside and there are none. LAWSON: I've just had discussions with my learned friend it seems and I don't wish to bind him of this, if my understanding of a consensus is not correct it seems to both parties at the bar table in any event the appropriate order should be that the defendant in the first instance get all the costs associated with the statement of claim and the plaintiff in the first instance get all the costs associated with the cross claim as agreed or assessed.

BRYSON JA: The decision as it now stands of the Master means that everybody pays their own costs in everything. As each side had a failure and success is there something wrong with that. LAWSON: No I don't see anything wrong with that because as I indicated earlier I suspect that that will be the net result. The time spent in this Court on the plaintiff's claim is offset if one weighs the respective time spent in the Local Court on the cross claim as against the statement of claim. So an order that in relation to the totality of all these proceedings, each party bear their own costs would be just and equitable. BRYSON JA: That would be achieved by not making order 3, but directing that the Master's order relating to costs of the local court is to stand. At p 49 he ordered that the costs orders made by the magistrate should be set aside. LAWSON: The costs order made by the magistrate of the local court was that the plaintiff was to have all of the costs associated with both-- BRYSON JA: Yes, but that was set aside. If the COA directed that the Master's order relating to the costs of the local court is to stand, then each party would pay its own costs of the local court. LAWSON: I don't know whether that follows there being no order in effect. BRYSON JA: Unless there's an order, you've got no recourse. LAWSON: I suspect your Honour's quite correct. The difficulty with that approach is that unless that is offset with an order in this court that each party bear their own costs, it will not take account of the respective time and work expended in relation to either the statement of claim as against the cross claim of the local court. IPP JA: Is there a consensus between counsel as to the costs orders that should be made? WALSH: I can't say anything against what my friend says, that it's probably fair rough justice that each party bear their own costs of the local court. IPP JA: And before the Master? BEAZLEY JA: The Master has made an order that the claimant pay the opponent's cost of the summons, notwithstanding the fact that there were two summonses. WALSH: Yes, and that reflects the fact that it was really abandoned on the appeal. There was nothing said about it, as is reflected in the judgment. IPP JA: So you're content for that to stand?

WALSH: The Master's order to stand, yes. IPP JA: And you should get the costs of the appeal?

WALSH: Yes. IPP JA: So the orders should be each party pay their own costs of the local court. WALSH: Yes. IPP JA: The Master's order stands as regards the appeal to him and Workforce gets the costs of the appeal?

WALSH: Yes. BEAZLEY JA: That's what is being proposed, Mr Lawson. LAWSON: That's a course that I would oppose for this reason, an order simply that each party bear their own costs of the local court proceedings doesn't take into account the great volume of work, relatively speaking, devoted to the cross claim, both in terms of the size of the affidavits and the material put before the Court and the time occupied by that particular portion of the claim before the local court as opposed to a statement of claim. My proposals are either that, as a matter of rough justice, each party bear their own costs of the whole of the proceedings on the basis that the costs of today spent only on the statement of claim offset the costs spent on the cross claim relative to the statement of claim in the local court. That's my first proposal, that each party bear their own costs of the totality of these proceedings. If your Honours are not minded to make that order, I submit the appropriate order would be that both in the local court and before the Master, the opponent is to have the costs associated with the claimant's statement of claim in both courts and the claimant is to have the costs of the opponent's cross claim in both courts. In relation to today, that the claimant pay the opponent's costs.

BEAZLEY JA: Having heard the submissions that the parties have made on the costs order, we would propose that in the local court the plaintiff, who is the claimant here, should pay the opponent the costs on the statement of claim and that the opponent here, defendant in the local court, should pay the plaintiff's costs of the cross claim. We would not interfere with the Master's orders in relation to the costs of the appeal before him and that in this court the claimant is to pay the opponent's costs of the appeal. The other costs order will be that proposed on the cross appeal.

Before those orders are finally made, I think that both myself and Ipp JA need to say a few words. The application for leave to appeal and the appeal which has been heard together at times caused some confusion, because it was not always clear precisely what the basis of the termination which it was said had occurred was being asserted.

Counsel for the claimant finally made it clear that what was relied upon was a termination pursuant to cl 18 of the contract, said to have been effected by a letter dated 6 March 2002. I agree with Bryson JA that that letter did not amount to a termination under the terms of the contract.

During the course of the argument on the appeal, there was also considerable debate as to whether any claim for damages would follow upon such a termination had it occurred. There seems to be an involving area of jurisprudence in relation to such matters. It is discussed in Carter and Hylands Contract Law in Australia, fourth edition, from paras 2157 and following. It is not necessary for me to make any further comment upon it. Subject to that matter, I agree with Bryson JA and agree with the orders that have been proposed, both the substantive orders and the orders that have been proposed in relation to costs.

IPP JA: I would leave open the question of whether a claim for damages could arise upon a termination under cl 18. Save for that, I agree with Bryson JA and the orders proposed. LAWSON: Would your Honour just hear me very briefly on the costs order. The proposed order I put before your Honours is that in the Court before Master Malpass, the opponent had the costs of the summons and the claimant had the costs of the cross summons, which was evidently filed and ruled upon. BEAZLEY JA: I didn't disturb the Master's orders, but I thought that was such a small part-- LAWSON: I'm not so sure that it was, your Honour. It was certainly agitated, because the Master felt the need to comment upon it. It was not withdrawn. BRYSON JA: He commented on how little attention it had obtained. LAWSON: He commented upon how hopeless the claim was. IPP JA: There was preparation anyway in the documents. BEAZLEY JA: It doesn't always follow that orders of that sort are made, but it appears that this matter will have to be subject to a significant assessment of costs and possibly a formal assessment. I think there are good reasons to make the order that Mr Lawson sought.

The orders of the Court are those that have been proposed, save that the order in relation to the costs before the Master will be amended so that the order as made by the Master as to the costs of the appeals before him will be set aside. LAWSON: Your Honour, could I suggest that simply the claimant in these proceedings pay the cost of the summons before Master Malpass and the opponent in these proceedings pay the cost of the cross summons, which was evidently filed. BEAZLEY JA: The order is made.

35 BRYSON JA: The orders were settled in these terms:- 1. Leave to appeal is granted. 2. Appeal is dismissed with costs. 3. Leave to cross-appeal is granted to Workforce International Pty Ltd. 4. The Court directs that notice of cross-appeal in the form of the document shown to the Court during the hearing be filed and served within seven days. 5. Cross-appeal allowed: 6. Judgment of the Master set aside in so far as it remits the matter to the Local Court. 7. Order that the Claimant Cross-respondent pay the costs of the Opponent Cross-appellant of the Cross-appeal limited to Court fees. 8. Order that in the Local Court the Claimant as plaintiff pay the Opponent as defendant the defendant's costs of proceedings on the Statement of Liquidated Claim and further order that the defendant pay to the plaintiff the plaintiff's costs of proceedings on the Cross-claim. 9. The Master's orders in relation to the costs of the appeals before him are set aside and in lieu thereof it is ordered that the Claimant as defendant in the appeal brought by the Opponent pay the opponent's costs of that appeal and further ordered that the Opponent as plaintiff in the opponent's cross-appeal pay the costs of the Claimant as defendant of that cross-appeal.

08/09/2005 - spelling of 'Coefficiency' - Paragraph(s) 1-27

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