Avsar v Public Trustee [No 2]

[2011] WASCA 77 (S)

AVSAR -v- PUBLIC TRUSTEE [No 2] [2011] WASCA 77 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 77 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:64/2010	Heard:	10 MARCH 2011 AND ON THE PAPERS
Coram:	PULLIN JA HALL J	Delivered:	4/04/11
Supplementary Delivered:	31/05/11
No of pages:	4	Judgment Part:	1 of 1
Result:	Appellant to pay first and second respondents' costs of appeal
Category:	B
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Parties:	JENNIFER PATRICIA AVSAR PUBLIC TRUSTEE JOHN ROBERT COWAN
Catchwords:	Costs Appeal dismissed Appellant unsuccessful Order to pay respondent's costs Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1(1) Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)
Case References:	Avsar v Public Trustee [2011] WASCA 77 Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AVSAR -v- PUBLIC TRUSTEE [No 2] [2011] WASCA 77 (S) CORAM : PULLIN JA

HALL J

HEARD : 10 MARCH 2011 AND ON THE PAPERS DELIVERED : 4 APRIL 2011 SUPPLEMENTARY
DECISION : 31 MAY 2011 FILE NO/S : CACV 64 of 2010 BETWEEN : JENNIFER PATRICIA AVSAR

Appellant

AND

PUBLIC TRUSTEE
First Respondent

JOHN ROBERT COWAN
Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : KENNETH MARTIN J

Citation : AVSAR -v- PUBLIC TRUSTEE [2010] WASC 11

File No : CIV 1530 of 2004

(Page 2)

Catchwords:

Costs - Appeal dismissed - Appellant unsuccessful - Order to pay respondent's costs - Turns on own facts

Legislation:

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

Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)

Result:

Appellant to pay first and second respondents' costs of appeal

Category: B

Representation:

Counsel:

Appellant : In person
First Respondent : Mr B W Ashdown
Second Respondent : Ms K P Hill

Solicitors:

Appellant : In person
First Respondent : Public Trustee
Second Respondent : Hartrey Legal

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

Avsar v Public Trustee [2011] WASCA 77
Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394


(Page 3)

1 JUDGMENT OF THE COURT: On 4 April 2011 this court published its reasons for concluding the appellant's proposed grounds of appeal should be struck out because none of them identified an error of fact or law in the primary judge's reasons for decision and therefore failed to comply with r 32(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA). As a consequence of that conclusion the appeal was dismissed: Avsar v Public Trustee [2011] WASCA 77. The respondents sought costs which the appellant opposed. Accordingly, the question of costs was reserved and directions were given for the filing of written submissions by each party and it was ordered that the question of costs be determined on the papers. The written submissions have now been filed.

2 The respondents submit that generally costs will follow the event and that there are no good reasons why such an order should not be made in this case. The appellant submits that the Court has an unfettered discretion in regard to costs and that that discretion should be exercised by declining to make an order in the circumstances of this case. The appellant submits that the first respondent gave her an assurance that no costs would be sought. She also submits that some of her grounds were valid and ought not to have been dismissed.

3 As regards the contention that the first respondent induced the appellant to believe that no costs would be sought, this is denied by the first respondent. The first respondent submits that letters that it wrote to the appellant on 8 September and 13 December 2010 were to the effect that it intended to make an application to strike out the grounds of appeal and to dismiss the appeal but that if the appellant consented to the dismissal it would not seek costs. Clearly that does not involve a concession that if the appellant did not consent and persisted with her appeal no costs would be sought.

4 As regards the contention that some of the grounds of appeal had merit, that is simply a contradiction of a conclusion already reached by the Court. The appellant's belief in the justice of her cause and her sense of grievance at the expenses she has incurred do not provide reasons why, as the unsuccessful party, she should be relieved of any obligation to meet the respondents' costs.

5 It is clear that while the court has broad discretion as to costs, generally costs will follow the event: Rules of the Supreme Court 1971 O 66 r 1(1). An unsuccessful party is obliged to satisfy the court that there are good reasons why it should not pay the other parties' costs:

(Page 4)

Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394, 407.

6 In this case there are no reasons which justify the court departing from the general rule. Accordingly, the appropriate order is that the appellant pay the first and second respondents' costs of appeal, including any reserved costs, to be taxed. Such costs to include a separate allowance for the first respondent's application dated 17 September 2010 and heard on 8 November 2010 and the application listed of the court's own motion by notice dated 9 February 2011 and heard on 10 March 2011.