Accelerated Loans Pty Ltd v Forbes [No 2] - [2025] WASC 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ACCELERATED LOANS PTY LTD -v- FORBES [No 2] [2025] WASC 52
CORAM:   LUNDBERG J
HEARD:   20 FEBRUARY 2025
DELIVERED          :   21 FEBRUARY 2025
FILE NO/S:   CIV 1443 of 2024
BETWEEN:   ACCELERATED LOANS PTY LTD
Plaintiff
AND
ANTHONY FORBES
First Defendant
JEAN CATHERINE FORBES
Second Defendant
ANTHONY FORBES
JEAN CATHERINE FORBES
Plaintiff by counterclaim
ACCELERATED LOANS PTY LTD
Defendant by counterclaim

Catchwords:

Costs - Appropriate order to be made following dismissal of the summary judgment application - Whether costs of the application should follow the event or be in the cause - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 14 r 8, O 66 r 1
Supreme Court Act 1935 (WA), s 37

Result:

Plaintiff is to pay the defendants' costs of the application, in any event, to be assessed if not agreed, payable forthwith

Category: B

Representation:

Counsel:

Plaintiff	:	J C Yeldon
First Defendant	:	T J Langdon
Second Defendant	:	T J Langdon
Plaintiff by counterclaim	:	T J Langdon
Defendant by counterclaim	:	J C Yeldon

Solicitors:

Plaintiff	:	Parsons & Partners
First Defendant	:	Richards & Lally Lawyers
Second Defendant	:	Richards & Lally Lawyers
Plaintiff by counterclaim	:	Richards & Lally Lawyers
Defendant by counterclaim	:	Parsons & Partners

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

Accelerated Loans Pty Ltd v Forbes [2024] WASC 504
Blenkinsop v Blenkinsop Nominees Pty Ltd [2015] WASC 254 (S)
Chalmsbury Nominees Pty Ltd v Alita Resources Limited (Receivers and Managers Appointed) (Subject to Deed of Company Arrangement) [2023] WASC 97
Frigger v Lean [2012] WASCA 66
James Point Pty Ltd v The Minister for Transport [2015] WASC 323 (S)
Major v Woodside Energy Ltd [No 3] [2009] WASC 246
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 (S)
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Whitehall Holdings Pty Ltd v Custom Credit Corporation Limited [1992] WASC 356

LUNDBERG J:

A. Introduction

On 16 December 2024, I heard the plaintiff's applications for summary judgment in this action, which had been brought pursuant to O 14 r 1(1) of the Rules of the Supreme Court 1971 (WA) (RSC) in respect of the plaintiff's claims, and pursuant to O 16 r 1(1) RSC in respect of the defendants' counterclaims.
On 23 December 2024, I published reasons dismissing the summary judgment applications and reserved the costs: Accelerated Loans Pty Ltd v Forbes.[1]
[1] Accelerated Loans Pty Ltd v Forbes [2024] WASC 504.
On 20 February 2025, the Court heard argument on the issue of costs. Counsel for the defendants moved for an order that the plaintiff pay the defendants' costs of the application in any event, to be assessed if not agreed, payable forthwith. Counsel…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] WASC 52
Decision Date: 21 FEBRUARY 2025

CaseChat Overview and Summary

The case of Accelerated Loans Pty Ltd v Forbes [No 2] involved a dispute where the primary issue was the determination of costs following the dismissal of a summary judgment application. The case was heard in the Supreme Court of Western Australia. The plaintiff, Accelerated Loans Pty Ltd, sought to have its claim for summary judgment dismissed, arguing that the defendant, Forbes, should bear the costs of the application. The defendant, Forbes, contended that the usual order should be that the costs of the application be costs in the cause.

The legal issues before the court were whether the costs of the summary judgment application should follow the event or be in the cause. This turned on the facts of the case and the established practice regarding costs in summary judgment applications. The court had to consider whether the application for summary judgment was properly brought but dismissed, and whether there were any circumstances that warranted a departure from the usual order.

In reaching its decision, the court referred to the established authority of Whitehall Holdings Pty Ltd v Custom Credit Corporation Limited. The court found that if a summary judgment application has been properly brought but dismissed, the most usual order is that the costs of the application be costs in the cause. This principle was upheld by the Full Court in Whitehall Holdings, where the application had been deemed reasonably arguable, and the costs were ordered to be in the cause. The court in the present case followed this authority, finding that the application for summary judgment was properly brought and the dismissal was not due to any defect in the application.

The court ordered that the costs of the summary judgment application be costs in the cause. This meant that the defendant, Forbes, would bear the costs of the application, as the plaintiff's application had been properly brought but dismissed. This decision was in line with the established practice and authority, ensuring that the costs followed the event as per the usual order in such cases.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There nonetheless remains the general discretionary power to make costs orders, which is not confined by O 14 r 8 RSC. In this regard, as to the practice in relation to costs outcomes in summary judgment applications, there is established authority to the effect that, if a summary judgment application has been properly brought but dismissed (for reasons other than defects in the application), the 'most usual order' is that the costs of the application be costs in the cause. That authority is the decision of the Full Court in Whitehall Holdings Pty Ltd v Custom Credit Corporation Limited,[6] delivered in 1992.[6] Whitehall Holdings Pty Ltd v Custom Credit Corporation Limited [1992] WASC 356 (Whitehall Holdings). Some analysis of Whitehall Holdings is pertinent, at this point. In Whitehall Holdings, the Master at first instance had granted summary judgment in favour of the plaintiff, upholding a claim for several millions of dollars. Indeed, the expedited list judge had accepted that the summary judgment application was a 'reasonable procedure' and allowed the case to stay in the expedited list pending the application being determined. The Full Court upheld the appeal and granted the defendants leave to defend the action. In upholding the appeal, Ipp J made it clear he considered the application had been 'readily arguable'. His Honour then explained his approach to the costs issue as follows:[7]The usual order where an application for summary judgment is dismissed is that the costs of the application be in the cause so that the party successful at the trial recovers them. The basis on which it is said on behalf of the appellants that the usual order should not be made is that the respondent should have known before the application for summary judgment was brought or, alternatively, in the course of bringing the application, that it would inevitably fail.The principal defence of the appellants was a counter-claim for damages that exceeded the respondent's claim, and it is said that the respondent should have known that the existence of this counter-claim would have resulted in the application for summary judgment failing.Exceptionally, when an application for summary judgment is dismissed, costs are awarded to the defendant; cases of this kind occur where the applications should never have been made.It cannot be said that this case falls into that category.…The rule that the costs of a summary judgment application may be ordered against an unsuccessful plaintiff where he knows of the existence of a defence rests in essence on the principle that applications for summary judgment should not be brought when the plaintiff is aware or should be aware that the application is hopeless and that it has no prospect of succeeding.[7] Whitehall Holdings (2 - 4) (Ipp J). Pidgeon J reached the same view, as to the reasonableness of the application.[8] As did Owen J.[9] The decision of the Full Court that the costs of the failed application ought be in the cause, is explicable in these circumstances. [8] Whitehall Holdings (6) (Pidgeon J).[9] Whitehall Holdings (7 - 8) (Owen J).