Ainsworth v Roberts
[2008] WASC 289 (S)
AINSWORTH -v- ROBERTS [2008] WASC 289 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 289 (S) | |
| Case No: | CIV:1677/2006 | ON THE PAPERS | |
| Coram: | MARTIN CJ | 11/12/08 | |
| 9/04/09 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Defendant pay the plaintiffs' costs of the action and counterclaim, to be taxed | ||
| 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
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 - 417). However, he indicated that he was unable to develop that submission on that occasion, and requested time to consider whether any such application would be made, and if so, to develop argument in support of it.
3 As I was then unable to see any basis upon which costs should not follow the event, I made a provisional order to the effect that the defendant pay the plaintiffs' costs of the action and the counterclaim, to be taxed, and including any reserved costs, but provisional in the sense that the order would not operate if, by 24 December 2008, the defendant had filed an application for some different costs order. On 23 December 2008, the defendant filed submissions in support of the orders which she seeks in relation to the costs of the substantive proceedings. The plaintiffs have filed written submissions in opposition to those orders. The parties have indicated they do not require an oral hearing in relation to the costs issues, and are content for me to determine the matter on the basis of the written submissions that have been exchanged.
4 The court has a general discretion with respect to the costs of and incidental to all proceedings before it (Supreme Court Act 1935 (WA), s 37), although without limiting that general discretion, the court will generally order that the successful party to any action or matter recover their costs (Rules of the Supreme Court 1971 (WA), O 66 r 1). As the plaintiffs were the successful parties in these proceedings, the starting point for the exercise of the discretion with respect to costs is that they should recover their costs from the unsuccessful party, the defendant, unless there is some reason for departure from this general practice.
(Page 4)
5 The written submissions that have been filed on behalf of the defendant, and which seek to justify a departure from the general practice are difficult to comprehend. The primary order apparently sought is an order to the effect that each party bear their own costs of the proceedings, and that all previous costs orders be set aside. Alternatively, orders are sought, in various permutations, limiting the costs recoverable by the plaintiffs to those applicable to designated issues, and requiring the plaintiffs to pay the defendant's costs on all other issues, on an indemnity basis, or alternatively by reference to the scale. The defendant also seeks a variation of an order relating to the manner of determining costs awarded in her favour by an order made on 10 March 2008.
6 Doing the best I can to discern from the written submissions that have been filed the basis for the defendant's assertion that there should be a departure from the usual practice whereby costs follow the event, the following propositions emerge:
(a) There was a significant alteration in the way in which the plaintiffs presented their case as a result of an amendment to the pleadings which resulted in the original trial dates being vacated;
(b) '[T]he plaintiffs' claim, as originally pleaded, was made in wilful disregard of known facts and had no chance of success';
(c) There is some distinction to be drawn between a loan from the third plaintiffs, in the amount of $180,000, and the provision of vendor finance;
(d) The plaintiffs, by their pleading, raised issues which were irrelevant;
(e) The sequence of agreements and variations to the original agreement found by the court did not correspond exactly with the plaintiffs' pleaded case;
(f) An order for the taxation of the plaintiffs' costs will expose the parties to further expense.
I will deal with each of these propositions in turn.
7 Firstly, in relation to the amendments to the statement of claim, and the consequent abandonment of the trial dates originally set, on 10 March 2008 I made an order that the plaintiffs pay the defendant's costs of those amendments, and any costs thrown away by reason of the adjournment of
(Page 5)
- the trial. Therefore the defendant is fully protected in relation to the costs arising from the amendment to the plaintiffs' case. The change of approach taken by the plaintiffs provides no basis for denying them their costs of the subsequent trial.
8 I turn then to the proposition that the plaintiffs' claim as originally formulated was made in wilful disregard of known facts and had no chance of success. This proposition is without foundation. The plaintiffs' claim was, at all times, a claim to the effect that there had been an agreement between the plaintiffs and the defendant which the defendant had renounced, and which renunciation had been accepted by the plaintiffs, bringing the agreement to an end. The amendments that were made to the plaintiffs' claim essentially related to differing legal nuances and processes of reasoning which supported that fundamental proposition. On the findings which I have made, the plaintiffs' fundamental proposition is, and always has been, correct.
9 The defendant's third proposition relates to some supposed distinction between a loan and 'vendor finance'. The submissions are silent on the subject of what that distinction is, or why it should have any significance in relation to the exercise of the court's discretion with respect to costs. There is nothing in this proposition.
10 Next the defendant contends that the plaintiffs raised a number of issues in their pleading which were irrelevant to the matters in issue. There are aspects of the plaintiffs' pleaded case with respect to the defendant's renunciation of the agreement which I found it unnecessary to determine because of my view that the defendant's renunciation of the agreement was clear and unequivocal. Those aspects concerned such things as the defendant's refusal to permit the third plaintiff to come and go from the farm as he pleased, that the defendant would prepare a summary of income and expenses of the cherry orchard and so on. In the view which I took of the case, those matters were peripheral. However, that is not to say that they are irrelevant, nor that they were issues upon which the defendant succeeded. Accordingly, the plaintiffs' reliance upon these additional issues provides no basis for departing from the general practice with respect to costs.
11 Next the defendant contends that the case ultimately found by me departed from the pleaded case, because I did not find that there was an agreement effected between Ms Keillor, as agent for the plaintiffs, and the defendant, to vary a term of the original agreement between the parties to
(Page 6)
- the effect that a Deed of Variation of the JEMA Trust was required. This is not correct: see Ainsworth v Roberts ([89] - [90]).
12 Finally the defendant asserts that if an order is made for taxation of the plaintiffs' costs, the parties will be subjected to further expense. While that is obviously so, and it is inevitable when any order is made for costs to be taxed if not agreed, the defendant's submissions do not advance any reason why that should result in a departure from the general practice with respect to costs.
13 For these reasons there does not appear to me to be any sound reason why there should be any departure from the usual practice with respect to costs in this case. Accordingly, I will reinstate the orders with respect to costs which I provisionally made on 12 December 2008. The plaintiffs' costs to be taxed pursuant to that order should include their costs of this issue.
14 However, the defendant points out that in the order which I made on 10 March 2008, I contemplated fixing the defendant's costs of the amendments to the statement of claim and the costs thrown away by reason of the adjournment of the trial. The defendant proposes that those costs should be taxed if not agreed. As it seems likely that there will be a taxation of costs, that course seems sensible. Accordingly, I will vary the order which I made on 10 March 2008 to provide that the costs awarded to the defendant by that order are to be taxed if not agreed.
15 Therefore I will make the following orders:
1. The defendant pay the plaintiffs' costs of the action and the counterclaim, to be taxed, and including any reserved costs and any costs incurred as a result of the defendant's application with respect to costs.
2. The costs awarded in favour of the defendant on 10 March 2008 to be taxed if not agreed.
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