Coco C'Bay Association (Inc). v Cooper - [2022] WASC 449

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   COCO C'BAY ASSOCIATION (INC). -v- COOPER [2022] WASC 449
CORAM:   SOLOMON J
HEARD:   ON THE PAPERS
DELIVERED          :   16 DECEMBER 2022
PUBLISHED           :   16 DECEMBER 2022
FILE NO/S:   CIV 2360 of 2021
BETWEEN:   COCO C'BAY ASSOCIATION (INC).
Plaintiff

AND

MICHAEL JAMES COOPER
First Defendant

SHARON LEE COOPER
Second Defendant

THE REGISTRAR OF TITLES
Third Defendant

Catchwords:

Costs - Fixed costs application - Quantum of costs sought

Legislation:

Transfer of Land Act 1893 (WA), s 138B, s 138C(2)(a)

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

Result:

The first and second defendant pay the plaintiff's costs fixed in the sum of $2,880.50

Category: C

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	HHG Legal Group
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	No appearance

Cases referred to in decision:

Brookvista Pty Ltd v Meloni [2009] WASCA 180
Coco C'Bay Association (Inc) v Paddison [2022] WASC 5

SOLOMON J:

This is the plaintiff's application for costs.
On 12 January 2022, I published reasons in Coco C'Bay v Association (Inc) v Paddison (the Paddison matter).[1]That matter was one of several involving absolute caveats held by the plaintiff association over the properties of various members of the association. The first and second defendants in this matter, Mr and Mrs Cooper, are two such members who in November 2021 applied to the second defendant under s 138B of the Transfer of Land Act 1893 (WA) (TLA) to serve the plaintiff with a notice that the caveat would lapse within 21 days, unless the plaintiff obtained an order from the Supreme Court.
[1] Coco C'Bay Association (Inc) v Paddison [2022] WASC 5.
Under those circumstances, the plaintiff in this matter filed an originating summons on 14 December 2021 seeking an urgent extension of the caveat, until the matter could be finally determined. That extension was granted on 17 December 2021 and was to stand until further order.
As it happened, the only matter that proceeded to substantive argument and a final determination was the Paddison matter. Following the publication of reasons in that matter, whereby the plaintiff was successful and the caveat was upheld, the defendants in the other related matters opted not to continue to resist the extension of the caveats over their respective properties. The plaintiff was awarded their costs in the Paddison matter, to be taxed if not agreed.
The first and second defendants never entered an appearance in this matter. On 15 February 2022, counsel for the plaintiff emailed the court to convey that the first and second defendants had expressed an intention not to proceed any further with the matter. As such, the orders of 17 December 2021 have remained on foot.
On 24 March 2022, I published a decision relating to the costs of another action relating to the same plaintiff association in…

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 Coco C'Bay Association (Inc). v Cooper

Details

AGLC: Coco C'Bay Association (Inc). v Cooper [2022] WASC 449
Case: [2022] WASC 449
Decision Date

CaseChat Overview and Summary

This matter involves an application by the plaintiff, Coco C'Bay Association (Inc), for costs from the first and second defendants, Mr and Mrs Cooper. The application relates to a caveat held by the plaintiff over the Coopers' property. The case was heard and determined by Justice Solomon of the Supreme Court of Western Australia. The legal issue before the court was the determination of the quantum of costs that the defendants should pay to the plaintiff.

Justice Solomon reviewed the submissions made by both parties and the evidence presented, including the affidavit of Ms Gina Nofal. The court took into account the similarities between the work done in this matter and the Paddison matter, as well as the Hudson matter, and considered whether the amount claimed by the plaintiff was excessive. The court found that the defendants had agreed to pay the plaintiff's costs, but the only dispute was the quantum of those costs. After considering the factors mentioned above, the court determined that the reasonable costs to be recovered by the plaintiff were $2,880.50.

Justice Solomon ordered that the first and second defendants pay the plaintiff's costs, fixed in the amount of $2,880.50. The court acknowledged that the defendants had conducted themselves respectfully throughout the proceedings and expressed empathy for the stress caused by the protracted costs proceedings.

Orders