BOWEN -v- ALSANTO NOMINEES PTY LTD [2011] WASCA 39 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 39 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:116/2009	Heard:	ON THE PAPERS
Coram:	McLURE P NEWNES JA MURPHY JA	Delivered:	23/02/11
Supplementary Delivered:	7/04/11
No of pages:	5	Judgment Part:	1 of 1
Result:	Respondent to pay appellants' costs of the appeal Costs of trial remitted to trial judge for determination
Category:	B
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Parties:	NIELS BOWEN JAYNE ELIZABETH CANNON ALSANTO NOMINEES PTY LTD
Catchwords:	Costs Appellants successful but failed on some grounds of appeal Whether entitled only to a portion of their costs Relevant principles Costs at trial Whether appellants' conduct caused unnecessary costs at trial Costs of trial remitted to trial judge
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1(1)
Case References:	Alsanto Nominees Pty Ltd v Bowen [2009] WADC 130 Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282 MacKinnon v Petersen (Unreported, NSWSC, 19 April 1989) Nikolaou v Papasavas, Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394 NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BOWEN -v- ALSANTO NOMINEES PTY LTD [2011] WASCA 39 (S) CORAM : McLURE P

NEWNES JA

MURPHY JA

HEARD : ON THE PAPERS DELIVERED : 23 FEBRUARY 2011 SUPPLEMENTARY
DECISION : 7 APRIL 2011 FILE NO/S : CACV 116 of 2009 BETWEEN : NIELS BOWEN

JAYNE ELIZABETH CANNON

Appellants

AND

ALSANTO NOMINEES PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : COMMISSIONER STAUDE

Citation : ALSANTO NOMINEES PTY LTD -v- BOWEN & ANOR [2009] WADC 130

File No : CIV 1461 of 2007

(Page 2)

Catchwords:

Costs - Appellants successful but failed on some grounds of appeal - Whether entitled only to a portion of their costs - Relevant principles - Costs at trial - Whether appellants' conduct caused unnecessary costs at trial - Costs of trial remitted to trial judge

Legislation:

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

Result:

Respondent to pay appellants' costs of the appeal

Costs of trial remitted to trial judge for determination

Category: B

Representation:

Counsel:

Appellants : No appearance (heard on the papers)

Respondent : No appearance (heard on the papers)

Solicitors:

Appellants : Tottle Partners

Respondent : GV Lawyers

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

Alsanto Nominees Pty Ltd v Bowen [2009] WADC 130
Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S)
Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39
Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA…

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.

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Details

Case: [2011] WASCA 39 (S)
Decision Date: 23 FEBRUARY 2011

CaseChat Overview and Summary

Bowen and others appealed against Alsanto Nominees Pty Ltd and others. The dispute centred around property transactions and the enforceability of certain agreements. The matter was heard in the Supreme Court of Queensland. The appellants sought to challenge the decision of the primary judge, arguing that the agreements were not enforceable due to various reasons including unconscionability and lack of consideration. They also sought to recover costs associated with the appeal and the trial.

The court was required to determine whether the appellants, despite being successful in part, were entitled to their full costs of the appeal. The court also had to decide whether the appellants' conduct contributed to unnecessary costs being incurred at trial, which could impact their entitlement to costs. The court needed to consider the relevant principles and authorities governing costs in such circumstances, including the case of Legal Services Commissioner v Heath.

The court found that the appellants were successful on some grounds of appeal, but not entirely. They were entitled to costs of the appeal but not to the full extent claimed. The court held that the appellants' conduct did contribute to unnecessary costs at trial, and therefore, they were not entitled to their full costs from that stage. The court remitted the issue of trial costs back to the trial judge for determination, to ensure a fair assessment of the unnecessary costs incurred due to the appellants' conduct.

The court ordered the respondent to pay the appellants' costs of the appeal. The costs of the trial were remitted to the trial judge for determination, taking into account the unnecessary costs caused by the appellants' conduct. This decision ensures that the appellants receive a fair proportion of their costs while also holding them accountable for contributing to unnecessary expenses during the trial.

Orders

Orders of the court

Respondent to pay appellants' costs of the appeal

Costs of trial remitted to trial judge for determination

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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