Altorfer and Stow (A Firm) v Lindsay
[2005] WASCA 73 (S)
•14 APRIL 2005
ALTORFER & STOW (A FIRM) -v- LINDSAY & ANOR [2005] WASCA 73 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 73 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:32/2004 | 10 FEBRUARY 2005 | |
| Coram: | WHEELER JA MCLURE JA | 14/04/05 | |
| 1/06/05 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Applicant to pay costs | ||
| B | |||
| PDF Version |
| Parties: | ALTORFER & STOW (A FIRM) BRIAN DESMOND LINDSAY THE PERSONS NAMED AS PLAINTIFFS IN SUPREME COURT CIV 1647 OF 2003 PERSONS NAMED AS PLAINTIFFS IN SUPREME COURT CIV 1647 OF 2003 AND RESPONDENTS (PLAINTIFFS) IN FUL 154 OF 2003 |
Catchwords: | Cost of application for leave to appeal and appeal Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1(3) |
Case References: | Altorfer & Stow (A Firm) v Lindsay & Anor [2005] WASCA 73 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALTORFER & STOW (A FIRM) -v- LINDSAY & ANOR [2005] WASCA 73 (S) CORAM : WHEELER JA
- MCLURE JA
DECISION : 1 JUNE 2005 FILE NO/S : FUL 32 of 2004 BETWEEN : ALTORFER & STOW (A FIRM)
- Applicant
AND
BRIAN DESMOND LINDSAY
THE PERSONS NAMED AS PLAINTIFFS IN SUPREME COURT CIV 1647 OF 2003
Respondents
- Applicant
AND
BRIAN DESMOND LINDSAY
PERSONS NAMED AS PLAINTIFFS IN SUPREME COURT CIV 1647 OF 2003 AND RESPONDENTS (PLAINTIFFS) IN FUL 154 OF 2003
Respondents
(Page 2)
ON APPEAL FROM:
For File No : FUL 32 of 2004
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
File No : CIV 1647 of 2003
For File No : FUL 148 of 2004
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
File No : CIV 1647 of 2003
Catchwords:
Cost of application for leave to appeal and appeal - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1(3)
Result:
Applicant to pay costs
Category: B
(Page 3)
Representation:
FUL 32 of 2004
Counsel:
Applicant : Mr I T Blatchford
Respondents : Mr J C Giles
Solicitors:
Applicant : Altorfer & Stow
Respondents : Solomon Brothers
FUL 148 of 2004
Counsel:
Applicant : Mr I T Blatchford
Respondents : Mr J C Giles
Solicitors:
Applicant : Altorfer & Stow
Respondents : Solomon Brothers
Case(s) referred to in judgment(s):
Altorfer & Stow (A Firm) v Lindsay & Anor [2005] WASCA 73
Case(s) also cited:
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569
(Page 4)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.
2 MCLURE JA: These reasons concern the costs of the appeal in Altorfer & Stow (A Firm) v Lindsay & Anor [2005] WASCA 73. On 14 April 2005 the Court ordered in FUL 32/2004 ("the first appeal") that there be leave to appeal and the appeal be dismissed and in FUL 148/2004 ("the second appeal"), that the application and the appeal be dismissed. Costs orders were not made on the day the judgment was delivered because counsel representing the applicant was not familiar with the matter. The parties have now filed written submissions.
3 The first appeal was from an order of Master Sanderson made on 8 March 2004 dismissing the applicant's application to stay the discovery action on the ground that the respondents' solicitors, Solomon Brothers, did not have authority to commence and prosecute the discovery action. The respondents claimed that Solomon Brothers had the requisite authority from the outset or alternatively by way of ratification. Master Sanderson concluded that Solomon Brothers had authority from the outset. By notice of contention, the respondents sought to uphold Master Sanderson's decision on the further ground that Solomon Brothers had the requisite authority by virtue of ratification. This Court concluded that Solomon Brothers did not have pre-existing authority but had the requisite authority by way of ratification. Thus, the Court upheld Master Sanderson's decision, albeit on a different ground.
4 The applicant seeks orders that:
(a) the order for costs made by Master Sanderson on 8 March 2004 be set aside;
(b) the applicant pay the respondents' costs on the issue of ratification before the Master and this Court;
(c) otherwise the respondents pay the applicant's costs before Master Sanderson and the costs of the appeal.
5 The applicant was unsuccessful in its application to set aside the orders made by Master Sanderson, including the costs orders. The only live issue relates to the costs of the appeal.
(Page 5)
6 The applicant was unsuccessful and the general rule is that costs follow the event. Prima facie, the respondents are entitled to the costs of the appeal (as well as the costs below).
7 The applicant relies on O 66 r 1(3) of the Rules of the Supreme Court 1971 (WA) which materially provides:
"Where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs, the Court may order such party to pay the costs of such issue or issues."
8 The applicant raised the issue, and bore the onus, of proving that Solomon Brothers acted without authority. It is incorrect to assert that the respondents raised the issue. In any event, there is a significant factual overlap between the issues of original authority and ratification. There is no justification in fact or in principle for departing from the general rule. The applicant was unsuccessful and should bear the costs of the application and the appeal.
9 In the second appeal the applicant challenged the decision made by Master Sanderson on 8 September 2004 refusing to adjourn the review of taxation. That application was dismissed. The applicant also appealed from Master Sanderson's dismissal of its application to review the taxation of costs. The Master concluded the Registrar was correct to dismiss an objection to the taxation without considering its merits. However, the Master went on to himself consider the merits of the objection. The appeal from the Master's decision on the merits was dismissed.
10 The applicant now seeks orders that the costs orders made by the Registrar and Master Sanderson be set aside and the respondent be ordered to pay some or all of the applicant's costs. That is again to misunderstand the effect of the orders already made. The application to set aside the orders below was unsuccessful.
11 As to the costs of the appeal, the applicant was successful on one of five grounds of challenge. However, the appeal was dismissed and prima facie the respondents are entitled to the costs of the appeal. As the respondents were substantially successful, I am satisfied that costs should follow the event.
12 Thus, the costs orders will be as follows: in FUL 32 of 2004, the applicant do pay the respondents' costs of the application for leave to appeal and the appeal to be taxed. In FUL 148 of 2004, the applicant do
(Page 6)
- pay the respondents' costs of the application for leave and the appeal to be taxed.
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