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.

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 Avsar v Public Trustee [No 2]

Details

AGLC: Avsar v Public Trustee [No 2] [2011] WASCA 77 (S)
Case: [2011] WASCA 77 (S)
Decision Date: 4 APRIL 2011

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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