BUCKERIDGE -v- WALTER [2010] WASCA 134 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASCA 134 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:118/2009	Heard:	23 APRIL 2010 AND ON THE PAPERS
Coram:	McLURE P OWEN JA BUSS JA	Delivered:	23/07/10
Supplementary Delivered:	19/10/10
No of pages:	4	Judgment Part:	1 of 1
Result:	Respondent to pay 75% of the appellant's cost of appeal to be taxed Indemnity certificate refused
Category:	B
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Parties:	LEONARD WALTER BUCKERIDGE JULIAN ALAN WALTER
Catchwords:	Costs Costs of appeal Application for indemnity certificate Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 1(3) Suitors' Fund Act 1964 (WA), s 10(a)
Case References:	Amaca Pty Ltd v Moss [2007] WASCA 162(S) Buckeridge v Walter [2010] WASCA 134 David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667 Jones v Dalcon Construction Pty Ltd [2006] WASCA 205(S) West Australian Newspapers Ltd v Elliott [2008] WASCA 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BUCKERIDGE -v- WALTER [2010] WASCA 134 (S) CORAM : McLURE P

OWEN JA

BUSS JA

HEARD : 23 APRIL 2010 AND ON THE PAPERS DELIVERED : 23 JULY 2010 SUPPLEMENTARY
DECISION : 19 OCTOBER 2010 FILE NO/S : CACV 118 of 2009 BETWEEN : LEONARD WALTER BUCKERIDGE

Appellant

AND

JULIAN ALAN WALTER

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : LE MIERE J

Citation : JWH GROUP PTY LTD -v- BUCKERIDGE [No 3] [2009] WASC 271

File No : CIV 2566 of 2003

(Page 2)

Catchwords:

Costs - Costs of appeal - Application for indemnity certificate - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 1(3)

Suitors' Fund Act 1964 (WA), s 10(a)

Result:

Respondent to pay 75% of the appellant's cost of appeal to be taxed

Indemnity certificate refused

Category: B

Representation:

Counsel:

Appellant : No appearance (on the papers)

Respondent : No appearance (on the papers)

Solicitors:

Appellant : Mallesons Stephen Jaques

Respondent : Clayton Utz

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

Amaca Pty Ltd v Moss [2007] WASCA 162(S)
Buckeridge v Walter [2010] WASCA 134
David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667
Jones v Dalcon Construction Pty Ltd [2006] WASCA 205(S)
West Australian Newspapers Ltd v Elliott [2008] WASCA 172

(Page 3)

1 McLURE P: These reasons relate to the costs connected with this court's decision in Buckeridge v Walter [2010] WASCA 134.

2 The appellant, who was successful in the appeal, seeks orders that the respondent pay the costs of the appeal and the costs below to be taxed. The respondent opposes orders in those terms. He seeks an order that the appellant pay 90% of the respondent's costs and the respondent pay 10% of the appellant's costs of…

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 Buckeridge v Walter

Details

AGLC: Buckeridge v Walter [2010] WASCA 134 (S)
Case: [2010] WASCA 134 (S)
Decision Date: 23 JULY 2010

CaseChat Overview and Summary

The case of Buckeridge v Walter involved the appellant, Buckeridge, seeking an indemnity certificate for the costs of an appeal from the respondent, Walter. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the respondent should be ordered to pay the full costs of the appeal incurred by the appellant. The court also had to determine if an indemnity certificate should be granted to the appellant.

The legal issues before the court centred on the criteria for awarding costs in an appeal and the circumstances under which an indemnity certificate might be refused. The court had to consider the principles of costs in appeals, particularly the factors that might justify a departure from the usual costs-follow-the-event rule. The appellant argued that the appeal had been successful and that the respondent's case lacked merit, thus justifying a departure from the usual rule. The respondent, on the other hand, contended that the appeal was not entirely without merit and that the appellant had not satisfied the criteria for an indemnity certificate.

The court held that while the appeal had been successful, the respondent's case was not entirely without merit. The court found that the appeal had raised legitimate issues, even though they were ultimately unsuccessful. Consequently, the court ruled that the respondent should pay only 75% of the appellant's costs of appeal, rather than the full amount. The court also refused to grant the indemnity certificate, stating that the circumstances did not justify such a departure from the usual costs-follow-the-event rule. The respondent was ordered to pay 75% of the appellant's costs of appeal, with the balance of the costs to be taxed.

Orders

Orders of the court

Respondent to pay 75% of the appellant's cost of appeal to be taxed

Indemnity certificate refused

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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