SAMSARA DEVELOPMENTS PTY LTD as trustee for THE WESTERN AUSTRALIAN LAND UNIT TRUST NO.8 -v- THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [2025] WASC 27 (31 January 2025)

(a) part 1, being the part of the Application pursuant to O 16 RSC seeking summary judgment and dismissal of the action;

(b) part 2, being the alternative application pursuant to O 20 r 19 RSC for an order that the statement of claim be struck out in its entirety and the action be dismissed; and

(c) part 3, being the further alternative application pursuant to O 20 r 19 RSC for an order that paragraphs 19 ‑ 23 of the statement of claim and paragraphs of the prayer for relief be struck out.

The parties' respective positions in relation to costs Samsara

1. Samsara seeks an order that the PTA pay its costs of the Application, to be taxed if not agreed. This is on the basis that Samsara contends it has been substantially successful in defeating the Application. It says that the PTA was wholly unsuccessful in relation to parts 1 and 2 of the Application and only succeeded in relation to part 3, which it says took up much less of the time and costs incurred.
2. It is Samsara's position, in effect, that parts 1 and 2 of the Application and the issues they raised were the focus of the parties' submissions (and the Primary Reasons) and took up the most significant amount of the time and costs incurred in relation to the Application.

1. The PTA accepts that the Application was not wholly successful, but says it succeeded in obtaining orders in the terms sought in part 3 of the Application. That is for the entirety of paragraphs 19 ‑ 23 of the statement of claim, which contain the substantive claims made by Samsara, to be struck out.
2. It was submitted on behalf of the PTA that it raised the deficiencies with those paragraphs of the statement of claim with Samsara, before and after the Application was filed, and they were not addressed. The PTA says, contrary to Samsara's submission that it conceded much of part 3 of the Application, Samsara only accepted that paragraphs 23(b) and 23(e) and the reference to 'professional costs' in paragraph D of the prayer for relief should be struck out.
3. The PTA's primary submission was that as it had been partially successful, Samsara should pay a proportion of its costs of the Application. It seeks an order that Samsara pay 50% of the PTA's costs of the Application, to be taxed if not agreed.
4. Alternatively, it submits that costs of the Application should be in the cause in accordance with the usual rule in an unsuccessful summary judgment application.

1. Counsel for Samsara referred to the summary of the principles relating to costs in Mickelberg & Ors v The State of Western Australia & Ors,[3] and to the court's consideration of the extent to which a party may be deprived of its costs where there has been a mixed outcome.[4] Reference was also made to the summary of the principles and the approach a court may take in determining costs where there has been mixed success, in Chen v Chan [No 2].[5]
2. The principles that apply to costs are well established and, although the parties differ as to how they should be applied in this case, they were not in dispute.
3. The relevant principles, including in relation to apportionment of costs where a party does not succeed on all issues, were set out in Strzelecki Holdings Pty Ltd v Jorgensen.[6] It is not necessary that I set out the relevant passages in full.
4. Without limiting the court's wide discretion as to costs, the starting point in relation to an award of costs is that costs will usually follow the event so that, generally, the court will order that the successful party to any action or matter recover their costs, as provided by O 66 r 1(1) RSC.
5. Under O 66 r 1(3) RSC, where a party, though generally successful in an action has, by the introduction of some issue or issues on which it has failed, increased the costs, the court may order such party to pay the costs of such issue or issues. As stated in Strzelecki v Jorgensen:[7]

... The Court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or to the failure of that party on one or more specific issues. The exercise of the discretion in that way is recognised by a number of rules in the RSC, together with the practice of the Court, and authority. So, for example, if the Court is of the opinion that the conduct of a successful party - either before or after the commencement of the litigation - has resulted in costs being unnecessarily or unreasonably incurred, the Court may deprive that party of costs, either wholly or in part, and it may further order that party to pay the costs of an unsuccessful party, either wholly or in part. ...

(citations omitted)

1. However, the Court of Appeal also stated in Strzelecki v Jorgensen:[8]

... It is well-recognised that an order that a successful party recover only a portion of its costs, where it has not been wholly successful, should not be made as a matter of course, for at least two reasons. First, it is often the case that a successful party will not succeed on every issue raised. Secondly, to attempt, in every case, an analysis of which party was successful on which issue would add uncertainty and complexity to the outcome of litigation, and add to the time and cost of costs arguments. Consequently, the power to apportion costs in this way should only be exercised where there are discrete and severable issues on which the generally successful party failed, and which added to the cost of the proceedings in a significant and readily discernible way. ...

(citations omitted)

1. In Chen v Chan [No 2],[9] the Victorian Court of Appeal stated:

(3) Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.

(citations omitted)

...

(5) Where a Court determines to make an order apportioning costs, then it does so primarily as 'a matter of impression and evaluation,' having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.

...

1. The principles in Chen v Chan [No 2] have been applied in decisions of this court in cases where there has been mixed or partial success, and orders have been made that a partly successful party only recover a portion of their costs.[10]
2. In Mickelberg, Newnes J stated that, in respect of the question of the allocation of the costs of legal proceedings, he did not consider that there is any relevant distinction in respect of the applicable principles between the trial of an action and an interlocutory application.[11]
3. Of course, there can be no hard and fast rules. The discretion must be exercised having regard to the circumstances of each case. As Whitby J observed in Deidler v Boroweic [No 2],[12] determining costs orders is 'inherently discretionary and each case must be considered on its own merits. The fairest outcome is what the court is aiming to achieve in exercising its discretion'.
4. As to what has been referred to as the 'usual rule', the PTA referred to Grove v Simon Dirk Kenworthy-Groen as executor of the estate of William Grove [No 3],[13] in which I referred to Hill J's summary of the principles that apply to costs orders in relation to an unsuccessful summary judgment application in Chalmsbury Nominees Pty Ltd v Alita Resources Ltd (Receivers and Managers Appointed) (Subject to Deed of Company Arrangement), as follows:[14]

[6] The usual order where an application for summary judgment is dismissed is that the costs of the application are in the cause. It is only in exceptional cases that costs will be awarded to the party who successfully opposed the application (Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd (Full Court, Supreme Court of WA, Lib No 920347, 19 June 1992).

[7] There has been some discussion as to whether this 'ordinary rule' should be reconsidered given modern case management practices (See Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 (S)). In NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd, the Court of Appeal held there was no basis to doubt the correctness of the ordinary rule. However, it was noted that while this is the ordinary rule, it is not fixed or inviolable (NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [113] (Murphy JA, Beech and Vaughan JJA agreeing).

[8] Where a reasonable party ought to have known it had no reasonable prospects of success of obtaining summary judgment, it may not be just for the applicant, even if successful at trial, to have the costs of the failed interlocutory application (NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [112]).

1. As I observed in Grove, it is usual that, where an application for summary judgment is dismissed, the costs of the application will be in the cause, although it is not a fixed rule. There may be cases where the circumstances warrant a departure from the usual or ordinary rule.[15] This may include circumstances where a reasonable party ought to have known that it had no reasonable prospects of success of obtaining summary judgment and it would not be just for the applicant, even if ultimately successful at trial, to have the costs of the failed summary judgment application.[16]

1. The PTA accepted that the Application was not wholly successful and that, if Samsara were to be ordered to pay the costs of the Application, the PTA would only be entitled to a proportion of its costs.
2. The PTA has succeeded in relation to part 3 of the Application and although, as has been submitted, much of the written submissions and oral argument focused on parts 1 and 2 of the Application, there was a significant degree of overlap. It was necessary to consider the operation of the relevant provisions of the LAA and the facts upon which Samsara brings its claim and for each party to put forward its arguments in relation to those matters to consider all aspects of the Application.
3. Had this been an application solely for summary judgment combined with one to strike out and summarily dismiss the whole claim, the appropriate order, in my view, would have been that costs be in the cause in accordance with what has been described as the usual or ordinary rule.
4. As has been accepted, the issues that arose for consideration in the Application were complex. At the time the Application was argued and determined, no authority had been identified to directly support recovery of the business losses claimed by Samsara and the construction arguments raised by it had not previously been directly considered by the court. It was for that reason that I determined the prospects of Samsara's claim were unclear and I was not satisfied it could be said to be untenable or unarguable so as to justify summary dismissal.
5. I do not accept Samsara's submission that it is the successful party and should be entitled to the costs of the Application. Although the PTA was unsuccessful in relation to parts 1 and 2 of the Application, it was successful in part 3. The substantive parts of the statement of claim were struck out. Samsara made only minor concessions in relation to that aspect of the Application[17] and was unsuccessful in opposing part 3 of the Application.
6. In the circumstances, I consider that it is appropriate that costs should follow the event in the usual course in relation to part 3 of the Application. Taking a pragmatic approach and applying the principles, as summarised in Chen v Chan [No 2], in my view, having regard to the significance and the time and resources allocated to that part of the Application, the appropriate costs order in relation to part 3 is that Samsara pay 30% of the PTA's costs of the Application. (For the avoidance of doubt, that is 30% of the defendant's costs of the whole Application - parts 1, 2 and 3).
7. As to when those costs should be paid, O 66 r 10(1) RSC provides that any order of the court for the payment of costs may require the costs to be paid forthwith notwithstanding the proceedings are not concluded. Consolidated Practice Direction 4.7.1(7) provides that the court will generally order that interlocutory costs ordered to be paid by a party are to be paid forthwith or by a particular date, rather than in any event. It is appropriate, in this case, to order that those costs be paid forthwith.
8. As to the balance of the costs of the Application, concerning the application for summary judgment, strike out and summary dismissal of the whole of Samsara's claim, the appropriate allocation is 70%.
9. This is not a case, in my view, that warrants a departure from the usual or ordinary rule that the costs of an unsuccessful summary judgment application be in the cause. Such an order is appropriate in the circumstances of this case.
10. The practical effect of this is that Samsara is to pay 30% of the PTA's costs of the Application on a party-party basis, which are to be taxed if not agreed and paid forthwith. The balance of the parties' costs of the Application (70%) are to be in the cause of the action. For the avoidance of doubt, that is 70% of the costs of the whole Application - parts 1, 2 and 3.
11. So, if the PTA is ultimately successful in the action, it will be entitled to the remaining 70% of its costs of the Application, as taxed or agreed, having already been awarded 30% of its costs of the Application. If Samsara is ultimately successful in the action, it will only be entitled to 70% of its costs of the Application, as taxed or agreed.

1. For these reasons, the appropriate orders as to the costs of the Application are:
   1. The plaintiff pay 30% of the defendant's costs of the Application, to be taxed if not agreed and paid forthwith.
   2. 70% of the parties' costs of the Application be in the cause, to be taxed if not agreed.
2. Orders will be made in those terms.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] References to the statement of claim are to the amended writ and statement of claim filed on 27 July 2023.

[2] Samsara Developments Pty Ltd as trustee for The Western Australian Land Unit Trust No 8 v The Public Transport Authority of Western Australia [2025] WASC 27.

[3] Mickelberg & Ors v The State of Western Australia & Ors [2007] WASC 140 (S) (Mickelberg) [29] (Newnes J).

[5] Chen v Chan [No 2] [2009] VSCA 233 [10].

[6] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 (Strzelecki v Jorgensen) [48] ‑ [52] (Murphy, Mitchell & Pritchard JJA).

[10] See for example Re Harrison - Ex Parte Hames [2015] WASC 247 (S) [12], [14] (Beech J); Netline Pty Ltd v QAV Pty Ltd [No 2] [2015] WASC 113 (S) [11] (Beech J); Stone v Registrar of Titles [2012] WASC 21 (S) [25], [30], [33] (Simmonds J); Singh v Kaur Bal [2011] WASC 303 (S) [15].

[12] Deidler v Boroweic [No 2] [2023] WASC 396 (S) [55], referring to Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 [6], [10] (Kenneth Martin J).

[13] Grove v Simon Dirk Kenworthy-Groen as executor of the estate of William Grove [No 3] [2023] WASC 185 (S) (Grove) [36] - [37].

[14] Chalmsbury Nominees Pty Ltd v Alita Resources Ltd (Receivers and Managers Appointed) (Subject to Deed of Company Arrangement) [2023] WASC 97 (S) [6] - [8].

[16] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [112] (Murphy JA, Beech & Vaughan JJA agreeing).