AINSWORTH -v- ROBERTS [2008] WASC 289 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 289 (S)
Case No:	CIV:1677/2006	Heard:	ON THE PAPERS
Coram:	MARTIN CJ	Delivered:	11/12/08
Supplementary Delivered:	9/04/09
No of pages:	6	Judgment Part:	1 of 1
Result:	Defendant pay the plaintiffs' costs of the action and counterclaim, to be taxed
Category:	B
PDF Version

Parties:	ERIC JOHN AINSWORTH JOAN LORRAINE MARSHALL KAYE PITT LESLEY JUNE KINGDON JOHN AINSWORTH ELLEN MAY AINSWORTH JUDITH DAWN ROBERTS
Catchwords:	Practice and procedure Costs No reason to depart from the rule that costs follow the event
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1 Supreme Court Act 1935 (WA), s 37
Case References:	Ainsworth v Roberts [2008] WASC 289

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : AINSWORTH -v- ROBERTS [2008] WASC 289 (S) CORAM : MARTIN CJ HEARD : ON THE PAPERS DELIVERED : 12 DECEMBER 2008 SUPPLEMENTARY
DECISION : 9 APRIL 2009 FILE NO/S : CIV 1677 of 2006 BETWEEN : ERIC JOHN AINSWORTH

First Plaintiff

JOAN LORRAINE MARSHALL

KAYE PITT

LESLEY JUNE KINGDON

Second Plaintiffs

JOHN AINSWORTH

ELLEN MAY AINSWORTH

Third Plaintiffs

AND

JUDITH DAWN ROBERTS

Defendant

Catchwords:

Practice and procedure - Costs - No reason to depart from the rule that costs follow the event

(Page 2)

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1

Supreme Court Act 1935 (WA), s 37

Result:

Defendant pay the plaintiffs' costs of the action and counterclaim, to be taxed

Category: B

Representation:

Counsel:

First Plaintiff : No appearance

Second Plaintiffs : No appearance

Third Plaintiffs : No appearance

Defendant : No appearance

Solicitors:

First Plaintiff : Bostock & Ryan

Second Plaintiffs : Bostock & Ryan

Third Plaintiffs : Bostock & Ryan

Defendant : Eapon Carlose

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

Ainsworth v Roberts [2008] WASC 289

(Page 3)

1 MARTIN CJ: In these proceedings, I published reasons for my decision (Ainsworth v Roberts [2008] WASC 289) and entered judgment on 12 December 2008. I found in favour of the plaintiffs, and granted declaratory relief to the effect that by reason of the plaintiffs' acceptance of the defendant's renunciation of an agreement between her and the plaintiffs, the agreement was at an end. I made further declarations, and ordered the defendant to execute and deliver an instrument for the transfer of land in registrable form, for the purpose of restoring the parties to the position in which they were prior to entry into the agreement. I also found in favour of one of the plaintiffs on a claim for debt, and ordered the defendant to pay an amount of $11,000 together with interest on that amount. I also dismissed the defendant's counterclaim.

2 At the time reasons were published, counsel for the defendant foreshadowed that he wished to consider putting a submission to the effect that costs should not follow the event, and that some special costs orders should be made (ts 416 -…

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: [2008] WASC 289 (S)
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Ainsworth v Roberts involved a dispute over costs following a judgment in favour of the plaintiffs. The plaintiffs, Eric John Ainsworth, Joan Lorraine Marshall, Kaye Pittlesley June Kingdon, John Ainsworth, and Ellen May Ainsworth, sought declaratory relief and a monetary judgment against the defendant, Judith Dawn Roberts. The court found in favour of the plaintiffs, declaring that the agreement between the parties was at an end due to the defendant's renunciation, which was accepted by the plaintiffs. Additionally, the court ordered the defendant to pay a debt of $11,000 plus interest and dismissed the defendant's counterclaim. The defendant sought a departure from the usual practice of costs following the event, arguing various grounds for a different costs order. The court found these arguments unconvincing and reinstated the provisional order that the defendant pay the plaintiffs' costs of the action and counterclaim. The court also varied an earlier order to tax the defendant's costs if not agreed.

The legal issues before the court were whether there were valid grounds for departing from the general practice that costs follow the event, and whether any of the defendant's arguments justified a different costs order. The court examined each of the defendant's propositions and found them to be without merit. The court held that the plaintiffs' amendments to their claim did not justify a different costs order, as the defendant had already been compensated for those costs. The court also found that the plaintiffs' claim was not made in wilful disregard of known facts and had a reasonable chance of success. The distinctions between a loan and vendor finance, the relevance of certain issues raised by the plaintiffs, and the sequence of agreements found by the court did not provide a basis for a different costs order. Lastly, while the taxation of costs would result in further expense, this alone did not justify a departure from the usual practice. Therefore, the court concluded that there was no sound reason to depart from the general practice with respect to costs, and ordered the defendant to pay the plaintiffs' costs of the action and counterclaim.

Orders