HUNTER AUTOMOTIVE GROUP PTY LTD -v- RANGE MOTORS PTY LTD [2026] WASC 205 (S)

[2026] WASC 205 (S) Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : HUNTER AUTOMOTIVE GROUP PTY LTD -v- RANGE MOTORS PTY LTD [No 2] [2026] WASC 205 (S) CORAM : BYDDER J HEARD : 11 JUNE 2026 DELIVERED : 17 AUGUST 2026 PUBLISHED : 18 AUGUST 2026 FILE NO/S : CIV 2430 of 2016 BETWEEN : HUNTER AUTOMOTIVE GROUP PTY LTD Plaintiff AND RANGE MOTORS PTY LTD Defendant Catchwords: Practice and procedure - Costs - Application for indemnity costs order - Turns on own facts Legislation: Legal Profession Act 2008 (WA) s 280 Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (WA) Legal Profession Uniform Law Application Act 2022 (WA) s 141 -- 1 of 11 -- [2026] WASC 205 (S) Page 2 Rules of the Supreme Court 1971 (WA) Result: Application for indemnity costs order refused Special costs order made Category: B Representation: Counsel: Plaintiff : Mr R W Douglas Defendant : Mr D Pratt Solicitors: Plaintiff : Couldwell Legal Defendant : Jackson McDonald Case(s) referred to in decision(s): Hunter Automotive Group Pty Ltd v Range Motors Pty Ltd [No 2] [2026] WASC 205 Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) -- 2 of 11 -- [2026] WASC 205 (S) BYDDER J Page 3 BYDDER J: Introduction 1 In Hunter Automotive Group Pty Ltd v Range Motors Pty Ltd [No 2] (Hunter),1 I determined the plaintiff's application to interrogate and seek production of documents (Application). The Application was opposed by the defendant. 2 In Hunter, I said:2 I make no finding on the nature or extent of the searches undertaken by the defendant in giving discovery in 2019 and 2021. Nor do I make any credibility finding about Mr Sutton in relation to his discovery affidavits and the discovery provided by the defendant. It is sufficient for the purpose of determining this application to note that: (a) no satisfactory explanation has been given for why the four documents attached to Exhibit 3, all of which relate to a matter in question on the pleadings, were not discovered in 2019 or 2021; and (b) Mr Sutton's evidence in Exhibit 3 is qualified in places by phrases to the effect that his memory or that the availability of the defendant's records has been affected by the passage of time. This is relevant to determining the application, given the opportunities in 2019 and 2021 to provide discovery, the unexplained failure to discover the four documents attached to Exhibit 3 in 2019 or 2021 and that those problems can be expected to only worsen over time. 3 It is not in dispute that the plaintiff had substantial success on the Application and that the defendant ought properly to pay the plaintiff's costs. What is in dispute is whether those costs ought to be paid on an indemnity basis, as the plaintiff submits, on the ordinary basis between party and party, as the defendant submits,3 or on some other basis. 4 As part of that dispute, there is a dispute about whether there was a failure to engage in proper conferral. I will deal with that dispute in the broader context of the dispute on costs. 1 Hunter Automotive Group Pty Ltd v Range Motors Pty Ltd [No 2] [2026] WASC 205. 2 Hunter [32] - [33] (footnote omitted). 3 ts 161 - 162. -- 3 of 11 -- [2026] WASC 205 (S) BYDDER J Page 4 5 In these reasons, I use the same shorthand references that I used in Hunter. The relevant principles 6 In Swansdale Pty Ltd v Whitcrest Pty Ltd (Swansdale),4 Pullin JA and Kenneth Martin J briefly summarised the principles applicable to the making of indemnity costs orders in litigation in the following terms: 1. A superior court, in its inherent jurisdiction, may make an indemnity costs order (see also Supreme Court Act 1935 s 37, and Legal Profession Act 2008 s 280).5 2. An indemnity costs order departs from the usual costs disposition order, whereby costs are awarded on a party/party basis: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59. 3. The court's discretion as to the making of an indemnity costs order is a discretion that must be exercised judicially. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397, 400 Woodward J said: Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases, where 'there is some special or unusual feature in the case to justify the court exercising its discretion in that way'. (emphasis added) 4. To obtain an indemnity costs order, it is not the case that the successful party needs to show a collateral purpose, or establish some species of fraud against the unsuccessful party. In J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301 303 French J by reference to the observations of Woodward J in Fountain Selected Meats, said: It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case. 4 Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10]. 5 Section 280 of the Legal Profession Act 2008 (WA) is no longer in force. The current provision, expressed in relevantly identical terms, is s 141 of the Legal Profession Uniform Law Application Act 2022 (WA). -- 4 of 11 -- [2026] WASC 205 (S) BYDDER J Page 5 5. Furthermore, in Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (Unreported, FCA, 3 May 1991) (referred to by Ipp J in Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190, 191) French J observed: The categories in which the discretion may be exercised are not closed. 6. Competing principles need to be balanced in assessing the making of a potential award of indemnity costs. In Quancorp Pty Ltd v MacDonald [1999] WASCA 101 [7], Wheeler J observed: On the one hand, a party should not be discouraged, by the prospect of an unusual costs order, from persisting in an action where its success is not certain. Uncertainty is inherent in many areas of law, and the law changes with changing circumstances. It is inappropriate that a case be too readily characterised as 'hopeless' so as to justify an award of indemnity costs to the successful party. However, where a party has by its conduct unnecessarily increased the cost of litigation, it is appropriate that the party so acting should bear that increased cost. Persisting in a case which can only be characterised as 'hopeless' is an example of the type of conduct which may lead the court to a view that the party whose conduct gave rise to the costs should bear them in full. 7. An indemnity costs order may be appropriate in situations which are shown to involve some element of improper, or at least unreasonable, conduct by a party or the party's legal advisers: see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 233 (Sheppard J), referred to by Pullin J in Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [9]. 8. A properly crafted special costs order may obviate the need for an indemnity costs order, where components of cost scale items are allowed above the applicable scale ceiling: see Flotilla [20] - [24]. 9. An indemnity costs order may not be appropriate if the claimed costs would be likely to be recovered under the standard order for party and party costs, or under a special order raising or removing a scale ceiling allowance: Flotilla [11]. In Unioil (No. 2) (193), Ipp J observed: However, counsel for the plaintiffs was unable to identify any costs so incurred that would not be covered -- 5 of 11 -- [2026] WASC 205 (S) BYDDER J Page 6 by an order for party and party costs. An order for indemnity costs on this ground is therefore not warranted. 10. Nonetheless, an indemnity costs order will constitute an appropriate sanction marking the disapproval of improper or unreasonable conduct: see Brookvista Pty Ltd v Meloni [2009] WASCA 180 [32], Flotilla [25]. In Flotilla Pullin J said [26]: A solicitor should not, in my view, resort to an application for an indemnity costs order merely to secure the recovery which could be achieved by a properly formulated special costs order, unless the unsuccessful party's conduct is genuinely to be impugned by the successful party. The plaintiff's submissions 7 The plaintiff submits that it should be awarded indemnity costs because: (a) the plaintiff repeatedly raised its concerns about the adequacy of the defendant's discovery by way of conferral, the defendant did not adequately engage with that conferral, and it became clear that nothing further was going to come from additional conferral; (b) my findings in Hunter at [32] - [33] are sufficient to justify the making of an indemnity costs order; (c) there has been 'a material, unexplained, half-decade failure to comply with longstanding orders for general discovery' by the defendant; (d) the defendant has accepted that it was unreasonable for it not to have discovered the documents attached to Exhibit 3; (e) those documents are directly relevant to the issues raised by the plaintiff and its Application, which has had to wait a year for determination, and at no time before the hearing of the Application did the defendant give discovery, attempt to give an explanation or accept that discovery was materially defective; (f) the effect of the Application was to partly cure defective discovery on the defendant's part because it has resulted in the defendant producing the documents attached to Exhibit 3; -- 6 of 11 -- [2026] WASC 205 (S) BYDDER J Page 7 (g) the defendant's opposition to the Application was unreasonable if not improper; and (h) a material part of the defendant's opposition to the Application had no chance of success because the defendant's discovery was materially defective, without warrant or excuse. The defendant's submissions 8 The defendant submits that costs should be awarded on the ordinary basis of party and party costs because: (a) the court could not find on the basis of the evidence before it (which is incomplete) there was a failure to engage in proper conferral; (b) in considering the matter, the court would have due regard to all of the circumstances, including the plaintiff's own conduct in connection with the Application and the extent to which that may have resulted in wasted costs; (c) while the plaintiff had substantial success in the Application, it did not have complete success because the Application was primarily pressed as an application for interrogatories; (d) my findings in Hunter at [32] - [33] are not sufficient to justify the making of an indemnity costs order, which is an extraordinary order. 9 The defendant also submits that if there is to be a departure from costs being awarded on an ordinary basis, it should not be by way of an indemnity costs order but instead should be a special order raising or removing a scale ceiling allowance. The defendant says that should not involve raising the hourly rate allowed under the scale. Consideration Conferral 10 It is clear from the correspondence in evidence between the plaintiff's solicitors and the defendant's solicitors that the former raised the apparent deficiencies with the defendant's discovery on a number of occasions. In my view, the matters raised by the plaintiff's solicitors were reasonable and warranted an answer. -- 7 of 11 -- [2026] WASC 205 (S) BYDDER J Page 8 11 However, as counsel for the defendant points out, the evidence in respect of conferral is at least potentially incomplete and it was not apparent until shortly before oral argument on the plaintiff's costs application that the adequacy of conferral would be relied on to support the plaintiff's costs application. 12 Further, there is no evidence of any attempt by the parties to confer by telephone as would ordinarily be expected.6 13 Two consequences flow from these matters. First, there has been some attempt at conferral on the Application, but it is unclear whether that conferral met the requirements of the Rules of the Supreme Court 1971 (WA). This is an appropriate case to waive the requirement for conferral, not because conferral should not have occurred but because conferral has at least been substantially attempted and it is unclear whether it reached the point of compliance. 14 Second, the adequacy or otherwise of conferral is not of a nature that would support the making of an indemnity costs order in this instance. It may support the making of such an order on the basis that the defendant had been on notice for some time of legitimate concerns about the adequacy of its discovery. The appropriate costs order 15 I am not persuaded that an indemnity costs order should be made in respect of the Application. 16 I acknowledge that there are a number of factors which militate in favour of making an indemnity costs order: (a) the defendant was on notice from the plaintiff for some time of legitimate concerns about the adequacy of its discovery; (b) Exhibit 3 was filed in opposition to the Application and yet the documents attached to it were relevant to the issues raised by the pleadings and as such were discoverable; (c) as counsel for the defendant properly accepted, it was unreasonable for the defendant not to have discovered the documents attached to Exhibit 3 as part of giving general discovery in 2019 or 2021; and 6 ts 154 - 155. -- 8 of 11 -- [2026] WASC 205 (S) BYDDER J Page 9 (d) there was ample reason on the evidence before me on the Application to believe that there may be additional discoverable documents relating to matters in question as they related to Mr Yearsley.7 17 However, in Hunter I made no finding on the nature or extent of the searches undertaken by the defendant in giving discovery and did not make any credibility finding in the context of discovery by the defendant. On the evidence before me it would not have been appropriate to do so. In those circumstances, while the defendant's conduct was unreasonable at least to the extent conceded by counsel for the defendant, I am not satisfied that its conduct rises to a level that would justify the making of an indemnity costs order. 18 Further, I do not accept that the defendant's opposition to the Application was improper or so unreasonable as to justify an indemnity costs order. The defendant had legitimate concerns about the breadth of the interrogatories proposed by the plaintiff,8 which was a significant focus of the Application. 19 Instead, I consider that it is appropriate to make a special costs order in favour of the plaintiff. I take that view for two reasons. 20 First, the Application was made necessary because of deficiencies in the defendant's discovery. The plaintiff has been put to additional expense in order to secure adequate discovery from the defendant. The provision of additional discoverable documents in Exhibit 3 meant that the Application had gone some way to securing further discoverable documents even before the Application had been determined. 21 Second, if contrary to the above I had been satisfied that an indemnity costs order was otherwise appropriate, I would not have been satisfied that the costs sought by the plaintiff were unlikely to be recovered under a special costs order or that an indemnity costs order was nevertheless required by way of sanction of the defendant's conduct. 22 The Application was made on 30 May 2025. It appears from Exhibit 1 that the earliest correspondence on which the plaintiff relied as raising concerns with the defendant about the adequacy of the defendant's discovery is dated 18 December 2024. As such, the relevant 7 Hunter [43]. 8 See Hunter [68] - [71]. -- 9 of 11 -- [2026] WASC 205 (S) BYDDER J Page 10 cost determination would appear to be the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (WA) (Determination) which came into operation on 1 July 2024. 23 In my opinion, the appropriate course is to lift the limits on the time spent, but not on the hourly rate, in respect of the relevant items in the Determination. Lifting the limits on the time spent is sufficient to address the costs incurred by the plaintiff in responding to the deficiencies in the defendant's discovery which fairly necessitated the Application. 24 The plaintiff's costs should exclude any costs incurred by the plaintiff in connection with: (a) the orders made by Seaward J on 25 August 2025; (b) the hearing before her Honour on 2 September 2025; or (c) the plaintiff's minute of amended application filed 25 May 2026. Disposition 25 In light of the above, I will order as follows. 1. By 4.00 pm on 28 August 2026, the parties are to confer on the appropriate orders to give effect to these reasons and either: (a) if they reach agreement, the plaintiff is to file and serve a memorandum of consent orders giving effect to these reasons; or (b) if they do not reach agreement, each party is to file and serve a minute of proposed orders giving effect to these reasons together with submissions comprising no more than three pages in support of its minute. 2. If minutes of proposed orders are filed under order 1(b), the appropriate orders to give effect to these reasons will be determined on the papers. -- 10 of 11 -- [2026] WASC 205 (S) BYDDER J Page 11 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. JS Associate to the Hon Justice Bydder 17 AUGUST 2026 -- 11 of 11 --