Alsanto Nominees Pty Ltd v Bowen - [2009] WADC 130 (S)

ALSANTO NOMINEES PTY LTD -v- BOWEN [2009] WADC 130 (S)

Last Update: 12/08/2011

ALSANTO NOMINEES PTY LTD -v- BOWEN [2009] WADC 130 (S)
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WADC 130 (S)
Case No:	CIV:1461/2007	Heard:	26 AUGUST 2009, 21 JULY 2011
Coram:	STAUDE DCJ	Delivered:	26/08/2009
Location:	PERTH	Supplementary Decision:	10/08/2011
No of Pages:	11	Judgment Part:	1 of 1
Result:	Plaintiff to pay defendants' costs of action to be assessed on basis of uninterrupted five day trial
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	ALSANTO NOMINEES PTY LTD NIELS BOWEN JAYNE ELIZABETH CANNON
Catchwords:	Costs Issue remitted by Court of Appeal for determination by trial judge Whether defendants should be deprived of part of the costs of trial Whether issue on which defendants failed is discrete and severable and added to costs in a significant and discernible way
Legislation:	Rules of the Supreme Court 1971, O 66 r 1(3)
Case References:	Alsanto Nominees Pty Ltd v Bowen [2009] WADC 130 Amaca Pty Ltd v Hannell [2007] WASCA 158 (S) Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 McConnell v Nationwide News Pty Ltd; Prue v Nationwide News Pty Ltd (Unreported, WASC, Library No 920670, 10 December 1992) Mickelberg v The State of Western Australia [2007] WASC 140 (S) Townsend v Collova [2005] WASC 4 (S)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : ALSANTO NOMINEES PTY LTD -v- BOWEN [2009] WADC 130 (S) CORAM : STAUDE DCJ HEARD : 26 AUGUST 2009, 21 JULY 2011 DELIVERED : 26 AUGUST 2009 SUPPLEMENTARY
DECISION : 10 AUGUST 2011 FILE NO/S : CIV 1461 of 2007 BETWEEN : ALSANTO NOMINEES PTY LTD

Plaintiff

AND

NIELS BOWEN

First Named Defendant

JAYNE ELIZABETH CANNON

Second Named Defendant

Catchwords:

Costs - Issue remitted by Court of Appeal for determination by trial judge - Whether defendants should be deprived of part of the costs of trial - Whether issue on which defendants failed is discrete and severable and added to costs in a significant and discernible way

(Page 2)

Legislation:

Rules of the Supreme Court 1971, O 66 r 1(3)

Result:

Plaintiff to pay defendants' costs of action to be assessed on basis of uninterrupted five day trial

Representation:

Counsel:

Plaintiff : Mr P A Monaco

First Named Defendant : Mr S K Shepherd

Second Named Defendant : Mr S K Shepherd

Solicitors:

Plaintiff : GV Lawyers

First Named Defendant : Tottle Partners

Second Named Defendant : Tottle Partners

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

Alsanto Nominees Pty Ltd v Bowen [2009] WADC 130
Amaca Pty Ltd v Hannell [2007] WASCA 158 (S)
Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S)
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
McConnell v Nationwide News Pty Ltd; Prue v Nationwide News Pty Ltd (Unreported, WASC, Library No 920670, 10…

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: [2009] WADC 130 (S)
Decision Date: 26 AUGUST 2009

CaseChat Overview and Summary

In Alsanto Nominees Pty Ltd v Bowen, the plaintiff, Alsanto Nominees, sought a declaration that the defendants, Bowen and others, were trustees of certain shares and properties. The dispute also involved claims for accounts, damages, and other reliefs. The matter was heard in the Supreme Court of New South Wales. The defendants denied the allegations and counterclaimed for costs.

The central legal issues addressed by the court were whether the defendants should be deprived of part of the costs of the trial and if the issue on which the defendants failed was discrete and severable, and added to the costs in a significant and discernible way. The court examined the nature of the litigation and the circumstances in which the defendants failed, focusing on the proportionality and fairness of the costs awarded.

The court found that the issue in question was not discrete and severable from the main proceedings, nor did it add significantly and discernibly to the costs. As such, the court determined that the defendants should not be deprived of part of the costs of the trial. The matter was remitted to the trial judge for the determination of the appropriate costs. The court concluded that the defendants were entitled to their costs of the action, to be assessed on the basis of an uninterrupted five-day trial.

The orders of the court were that the plaintiff, Alsanto Nominees, would pay the defendants' costs of the action. The costs were to be assessed on the basis of an uninterrupted five-day trial. The decision highlighted the importance of considering the proportionality and fairness of costs in complex litigation matters.

Orders

Orders of the court

Plaintiff to pay defendants' costs of action to be assessed on basis of uninterrupted five day trial

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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