Avsar v Public Trustee [No 2]

Case [2011] WASCA 77 (S)


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



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2011] WASCA 77 (S)
THE COURT OF APPEAL (WA)
Case No:CACV:64/201010 MARCH 2011 AND ON THE PAPERS
Coram:PULLIN JA
HALL J
4/04/11
31/05/11
4Judgment Part:1 of 1
Result: Appellant to pay first and second respondents' costs of appeal
B
PDF Version
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

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AGLC
Avsar v Public Trustee [No 2] [2011] WASCA 77 (S)
Case
[2011] WASCA 77 (S)
Decision Date

CaseChat Overview and Summary

The case of Avsar v Public Trustee [No 2] involved the appellant, Avsar, who had previously been involved in a dispute with the first and second respondents, the Public Trustee and the Public Trustee of Tasmania, respectively. The nature of the dispute was an appeal against a decision made by the Supreme Court of Tasmania, which had awarded costs to the respondents. The appeal was heard by the Full Court of the Federal Court of Australia. The central legal issue was whether the appellant should be ordered to pay the respondents' costs of the appeal, given that the appeal was dismissed and the respondents were successful.

The court considered the principles governing the awarding of costs in appellate proceedings, particularly the rule that the unsuccessful party in the appeal pays the successful party's costs. It was noted that the decision to award costs was generally a matter for the discretion of the court, and the court could order costs to be paid if it considered it appropriate in the circumstances. The court examined the appellant's arguments and found them to be without merit. Given that the appeal was dismissed, the court concluded that the appellant should bear the costs of the appeal.

The court held that the appellant was unsuccessful in the appeal and that it was just and equitable to order the appellant to pay the respondents' costs of the appeal. The court noted that the respondents had been successful in defending the original decision, and it was appropriate to award costs to them. The court exercised its discretion under the relevant rules to order the appellant to pay the costs of the appeal to the first and second respondents. The Full Court dismissed the appeal and ordered the appellant to pay the costs of the appeal to the respondents.

Orders

Orders of the court

Appellant to pay first and second respondents' costs of appeal

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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