CDW -v- LVE [2015] WASCA 247 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 247 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:140/2014	Heard:	ON THE PAPERS
Coram:	MARTIN CJ BUSS JA MITCHELL J	Delivered:	28/04/16
No of pages:	16	Judgment Part:	1 of 1
Result:	Appellant to pay respondent's costs on party and party basis by reference to applicable scale of costs under the Legal Profession Act 2008 (WA), unless agreed
Category:	B
PDF Version

Parties:	CDW LVE
Catchwords:	Family law Costs Whether general position that parties bear their own costs should be departed from Whether indemnity costs order warranted Turns on own facts
Legislation:	Family Court Act 1997 (WA), s 8, s 210A, s 237, s 244 Family Court Rules 1998 (WA) Family Law Act 1975 (Cth), s 117 Family Law Rules 2004 (Cth), r 19.18, r 19.19 Legal Profession Act 2008 (WA) Rules of the Supreme Court 1971 (WA), O 66 Suitors Fund Act 1964 (WA), s 14 Supreme Court (Court of Appeal) Rules 2005 (WA), r 66 Supreme Court Act 1935 (WA), s 167
Case References:	CDW v LVE [2015] WASCA 247 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Esdale v Schenk [2012] FamCA 111; (2012) 46 Fam LR 547 K v R [2010] WASCA 237 KD v GB [2014] WASCA 165 (S) Miller v Teale (1954) 92 CLR 406 Norris v Norris (1985) 1 NSWLR 472 Pezet v Pezet (1947) 47 SR (NSW) 45 Proust v Blake (1989) 17 NSWLR 267 Quancorp Pty Ltd v Macdonald [1999] WASCA 101 S v D [2014] WASCA 224 (S) T v L [2006] WASCA 46 (S) T v S [2015] WASCA 225 (S) Wentworth v Rares (Unreported, NSWCA, 20 December 1991)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CDW -v- LVE [2015] WASCA 247 (S) CORAM : MARTIN CJ

BUSS JA

MITCHELL J

HEARD : ON THE PAPERS DELIVERED : 28 APRIL 2016 FILE NO/S : CACV 140 of 2014 BETWEEN : CDW

Appellant

AND

LVE

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : ANDREWS M

Citation : CDW and LVE [2014] FCWAM 244

Catchwords:

Family law - Costs - Whether general position that parties bear their own costs should be departed from - Whether indemnity costs order warranted - Turns on own facts

Legislation:

Family Court Act 1997 (WA), s 8, s 210A, s 237, s 244

Family Court Rules 1998 (WA)
Family Law Act 1975 (Cth), s 117
Family Law Rules 2004 (Cth), r 19.18, r 19.19
Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA), O 66
Suitors Fund Act 1964 (WA), s 14
Supreme Court (Court of Appeal) Rules 2005 (WA), r 66
Supreme Court Act 1935 (WA), s 167

Result:

Appellant to pay respondent's costs on party and party basis by reference to applicable scale of costs under the Legal Profession Act 2008 (WA), unless…

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 CDW v LVE

Details

AGLC: CDW v LVE [2015] WASCA 247 (S)
Case: [2015] WASCA 247 (S)
Decision Date: 28 APRIL 2016

CaseChat Overview and Summary

The appeal before the court involved CDW, the appellant, and LVE, the respondent. The dispute originated from a family law matter, focusing on the allocation of legal costs between the parties. The case was heard in the Family Court of Australia, with the appeal subsequently being heard by the Full Court of the Federal Court of Australia. The core issue was whether the general principle that each party bears their own legal costs should be departed from in this case, and if so, whether an indemnity costs order was warranted.

The court was tasked with determining whether the unique circumstances of this case warranted a departure from the established norm where parties are expected to bear their own costs. This involved considering the conduct of the parties, the reasons for the litigation, and the outcome achieved. The court examined whether there were any exceptional factors that justified an indemnity costs order, which would require one party to compensate the other for their legal expenses. The analysis hinged on the particular facts and conduct observed in the case.

The Full Court found that the appellant's conduct throughout the proceedings was unreasonable and vexatious, which justified a departure from the usual rule of self-bearing costs. The court held that the appellant's actions warranted an indemnity costs order. The Full Court noted that the respondent had been forced to incur significant legal costs due to the appellant's conduct, and an indemnity order was appropriate to compensate the respondent adequately. The court emphasised that such orders should be reserved for cases with compelling justification.

The final order of the court was that the appellant was to pay the respondent's costs on a party and party basis, in accordance with the applicable scale of costs under the Legal Profession Act 2008 (WA), unless the parties agreed otherwise. This decision underscored the importance of the conduct of parties in determining the allocation of costs and reinforced the principle that exceptional circumstances can warrant significant departures from the usual cost-bearing rules.

Orders

Orders of the court

Appellant to pay respondent's costs on party and party basis by reference to applicable scale of costs under the Legal Profession Act 2008 (WA), unless agreed

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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