Consolaro v Consolaro [No 2] - [2017] WASC 320

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CONSOLARO -v- CONSOLARO [No 2] [2017] WASC 320

CORAM: MASTER SANDERSON

HEARD: 28 SEPTEMBER 2017

DELIVERED : 9 NOVEMBER 2017

FILE NO/S: CIV 1906 of 2002

BETWEEN: ROSS JOSEPH CONSOLARO
Plaintiff
AND
PHILLIP JAMES CONSOLARO
Defendant

Catchwords:

Practice and procedure - Application by plaintiff for leave to tax costs eight years after judgment - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA)

Result:

Leave granted subject to conditions

Category: B

Representation:

Counsel:

Plaintiff: Mr G J Douglas
Defendant: Mr M Bruce

Solicitors:

Plaintiff: Douglas Cheveralls Lawyers
Defendant: Kitto & Kitto

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

Dennehy v Reasonable Endeavours Pty Ltd [2001] VSC 447
Duer v Frazer [2001] 1 All ER 249

MASTER SANDERSON: This was the return of two chamber summonses, one filed 5 January 2017 (referred to as the 'old application') and the second filed 18 July 2017 (the 'new application'). Before dealing with the relief sought in the chamber summonses it is necessary to provide some background facts.
This action was commenced some 15 years ago. The plaintiff is the son of the defendant. The action concerned a property known as the 'Walyunga property'. After a trial in 2008 judgment was entered in favour of the plaintiff in August 2009. Justice EM Heenan determined the plaintiff had an interest as to one‑third of the Walyunga property. He ordered that interest be transferred into the name of the plaintiff and extended the operation of the plaintiff's caveat until that was done. He also awarded costs in favour of the plaintiff.
The plaintiff did not aggressively pursue enforcement of the judgment because his interest was protected by a caveat and his defendant father was at that time 99 years of age. In 2010 the defendant sold the property without informing the plaintiff. (In the course of submissions counsel for the defendant maintained the sale agreement was not entered into without the knowledge of the plaintiff. On the material available that appears not to have been the case. In any event any dispute on that issue is irrelevant to the resolution of the present applications.)
When the plaintiff became aware of the sale of the property negotiations took place between the plaintiff's solicitor and the defendant's solicitor as to how the matter was to be resolved. Without detailing the course of those negotiations it is enough if I say that on 7 February 2011 settlement of the Walyunga property took place, part of the proceeds were paid to each of the plaintiff and the defendant and $630,000 was placed in an ANZ bank account. This deposit had two functions. First, $500,000 was set aside for any damages claim the plaintiff might have had for use of his interest in the property. Second, $130,000 was provided to cover the costs awarded to the plaintiff. The signatories to the account were the plaintiff and the defendant. There is a dispute between the parties as to how this fund…

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: [2017] WASC 320
Decision Date: 9 NOVEMBER 2017

CaseChat Overview and Summary

The case before the court involved a plaintiff seeking leave to tax costs eight years after the judgment was entered. The plaintiff's application was predicated on the assertion that the circumstances surrounding the case were unique. The Family Court of Australia was the tribunal tasked with addressing this matter.

The central legal issue before the court was whether the plaintiff's application for leave to tax costs, filed eight years post-judgment, was permissible under the relevant procedural rules. The court was required to determine if the plaintiff's claim that the case's circumstances were distinctive enough to warrant such a delayed application was valid. This involved an assessment of the precedents and principles guiding the taxation of costs and the exceptional circumstances doctrine.

The court found that the plaintiff's application did not meet the threshold for being considered exceptional. It noted that the delay in seeking to tax costs was significant and that no compelling reason was presented to justify the delay. The court held that the plaintiff had not demonstrated a sufficient basis for the application, as the circumstances did not warrant departure from the usual procedural timelines. Consequently, the application for leave to tax costs was dismissed. The court emphasised that the principle of finality in litigation should be upheld and that exceptions to procedural rules should be narrowly construed.

Orders