AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) -v- MOSS [2007] WASCA 162 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 162 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:5/2007	Heard:	28 FEBRUARY & 1 MARCH 2007
Coram:	MARTIN CJ STEYTLER P McLURE JA	Delivered:	2/08/07
Supplementary Delivered:	21/02/08
No of pages:	5	Judgment Part:	1 of 1
Result:	Respondent pay the appellant's cost of the trial and appeal, to be taxed
Category:	B
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Parties:	AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) (ACN 000 035 512) DENNIS WALTER JOHN MOSS
Catchwords:	Costs Whether the issues on appeal justify departure from the general rule that the successful party should recover its costs Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1
Case References:	Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109 J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1993) 46 IR 301

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) -v- MOSS [2007] WASCA 162 (S) CORAM : MARTIN CJ

STEYTLER P

McLURE JA

HEARD : 28 FEBRUARY & 1 MARCH 2007 DELIVERED : 2 AUGUST 2007 SUPPLEMENTARY
DECISION : 22 FEBRUARY 2008 FILE NO/S : CACV 5 of 2007 BETWEEN : AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) (ACN 000 035 512)

Appellant

AND

DENNIS WALTER JOHN MOSS

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : LE MIERE J

Citation : MOSS -v- AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) [2006] WASC 311

File No : CIV 1089 of 2006

(Page 2)

Catchwords:

Costs - Whether the issues on appeal justify departure from the general rule that the successful party should recover its costs - Turns on own facts

Legislation:

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

Result:

Respondent pay the appellant's cost of the trial and appeal, to be taxed

Category: B

Representation:

Counsel:

Appellant : No appearance

Respondent : No appearance

Solicitors:

Appellant : Jarman McKenna

Respondent : Slater & Gordon

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

Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1993) 46 IR 301

(Page 3)

1 JUDGMENT OF THE COURT: By orders made on 2 August 2007, the Court allowed this appeal, set aside the judgment of the trial judge and instead ordered that the respondent's action against the appellant be dismissed. Directions were made for the exchange of written submissions in relation to the costs of the trial and the appeal. These reasons are concerned only with those costs issues.

2 The appellant submits that the general rule, reflected in O 66…

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.

Continue reading Amaca Pty Ltd v Moss

Details

AGLC: Amaca Pty Ltd v Moss [2007] WASCA 162 (S)
Case: [2007] WASCA 162 (S)
Decision Date: 2 AUGUST 2007

CaseChat Overview and Summary

The case of Amaca Pty Ltd versus Moss was heard in the Australian court. Amaca Pty Ltd, the appellant, sought to recover its costs from Moss, the respondent, who was unsuccessful in their appeal. The primary dispute centred on the issue of costs, specifically whether the issues presented on appeal warranted a departure from the general rule that the successful party should recover its costs. This case highlighted the importance of the principle that costs typically follow the event, and how it might be set aside in particular circumstances.

The legal issues before the court involved the interpretation of the general rule regarding costs and the circumstances under which it might be appropriate to deviate from this principle. The court had to determine whether the specific issues raised in the appeal justified a departure from the established norm, considering the facts and nature of the case. The appellant argued that the appeal involved significant issues that warranted a reconsideration of the costs order, while the respondent maintained that the general rule should apply.

In reaching its decision, the court meticulously examined the facts of the appeal and the nature of the issues presented. The court found that the issues on appeal were substantial and warranted a departure from the usual rule regarding costs. The court emphasised that the principle of costs following the event is not absolute and can be set aside when the circumstances of the case so dictate. Consequently, the court ruled that the respondent should pay the appellant's costs of the trial and appeal, to be taxed. This decision underscored the importance of ensuring that justice is served fairly, even if it means departing from established rules where necessary.

Orders

Orders of the court

Respondent pay the appellant's cost of the trial and appeal, to be taxed

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

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