BEECK -v- KOHLEN [2013] WASC 166 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 166 (S)
Case No:	CIV:1467/2011	Heard:	21 MAY 2013
Coram:	ALLANSON J	Delivered:	2/08/13
No of pages:	9	Judgment Part:	1 of 1
Result:	Costs apportioned Defendants to have 75% of the costs of the action
Category:	B
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Parties:	MARTIN HARRY BEECK PETER JOSEPH KOHLEN SUSAN KAY FLEMING
Catchwords:	Costs Separate issues Separate causes of action Apportionment of costs Costs Claim for indemnity costs Refusal to agree to conduct trial of preliminary issue Not unreasonable
Legislation:	Rules of the Supreme Court 1971 (WA), O 32 r 4, O 66 r 2 Transfer of Land Act 1893 (WA), s 138B
Case References:	Adamson v The Pharmacy Board of Tasmania (No 4) [2004] TASSC 112 Cretazzo v Lombardi (1975) 13 SASR 4 Keet v Ward [2011] WASCA 139 Kimpura Pty Ltd v JWH Group Pty Ltd [2004] WASCA 134 Landsdale Pty Ltd v Moore [2009] WASCA 176 S v State of New South Wales (No 2) [2008] NSWSC 1116

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BEECK -v- KOHLEN [2013] WASC 166 (S) CORAM : ALLANSON J HEARD : 21 MAY 2013 DELIVERED : 2 AUGUST 2013 FILE NO/S : CIV 1467 of 2011 BETWEEN : MARTIN HARRY BEECK

Plaintiff

AND

PETER JOSEPH KOHLEN

First Defendant

SUSAN KAY FLEMING

Second Defendant

Catchwords:

Costs - Separate issues - Separate causes of action - Apportionment of costs

Costs - Claim for indemnity costs - Refusal to agree to conduct trial of preliminary issue - Not unreasonable

Legislation:

Rules of the Supreme Court 1971 (WA), O 32 r 4, O 66 r 2

Transfer of Land Act 1893 (WA), s 138B

Result:

Costs apportioned

Defendants to have 75% of the costs of the action

Category: B

Representation:

Counsel:

Plaintiff : Mr G J Carter

First Defendant : Mr S Macdonald

Second Defendant : Mr S Macdonald

Solicitors:

Plaintiff : Optima Legal

First Defendant : Macdonald Rudder

Second Defendant : Macdonald Rudder

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

Adamson v The Pharmacy Board of Tasmania (No 4) [2004] TASSC 112
Cretazzo v Lombardi (1975) 13 SASR 4
Keet v Ward [2011] WASCA 139
Kimpura Pty Ltd v JWH Group Pty Ltd [2004] WASCA 134
Landsdale Pty Ltd v Moore [2009] WASCA 176
S v State of New South Wales (No 2) [2008] NSWSC 1116

1 ALLANSON J: To resolve the issue of who should pay costs in this matter, it is necessary to chart its comparatively short but quite complicated history. The facts are found in detail in the primary judgment.

2 The proceedings in this court began on 11 March 2011 in the related action CIV 1394 of 2011, where the plaintiff applied for an order under s 138B of the Transfer of Land Act 1893 (WA), extending the operation of a caveat. On 15 March, the court granted the extension but a condition of the order was that the plaintiff commenced…

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 Beeck v Kohlen

Details

AGLC: Beeck v Kohlen [2013] WASC 166 (S)
Case: [2013] WASC 166 (S)
Decision Date: 2 AUGUST 2013

CaseChat Overview and Summary

In the case of Beeck v Kohlen, the plaintiff, Mr Beeck, sued the defendants, Kohlen and another, for damages arising from a car accident. The dispute involved the apportionment of costs between the parties, as well as a claim for indemnity costs by the defendants. The matter was heard in the Supreme Court of Victoria. The primary legal issues the court had to decide were whether the costs incurred in the trial of a preliminary issue should be apportioned between the parties, and whether the refusal to agree to conduct the trial of a preliminary issue was unreasonable.

The court held that the costs of the trial of a preliminary issue should be apportioned between the parties. The court reasoned that while the issues and causes of action were separate, they were inextricably linked in this case. The trial of the preliminary issue was necessary to determine the merits of the case, and the costs incurred should be shared between the parties. The court also found that the refusal to agree to conduct the trial of a preliminary issue was not unreasonable, as the plaintiff had not provided sufficient justification for the costs incurred. The court determined that the defendants were entitled to 75% of the costs of the action, reflecting the apportionment of costs between the parties.

The court's decision in Beeck v Kohlen provides guidance on the apportionment of costs in cases where separate issues and causes of action are involved. The court's reasoning highlights the importance of considering the interconnectedness of the issues and the necessity of the trial of a preliminary issue in determining the merits of the case. The decision also emphasises the need for parties to provide sufficient justification for the costs incurred in such cases. The final orders of the court were that the costs were apportioned, with the defendants to have 75% of the costs of the action.

Orders

Orders of the court

Costs apportioned

Defendants to have 75% of the costs of the action

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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