CULLOTON -v- COSGROVE [2015] WASCA 25

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 25
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:139/2014	Heard:	2 FEBRUARY 2015
Coram:	MURPHY JA	Delivered:	6/02/15
No of pages:	15	Judgment Part:	1 of 1
Result:	Application for a stay dismissed Application for an extension of time by which to commence the appeal referred to the hearing of the appeal Application for an extension of time by which to file and serve the appellant's case allowed Application to adduce additional evidence referred to the hearing of the appeal Application to vacate taxation of costs hearing in the District Court dismissed Appeal stayed pending the appellant's application to set aside the judgment in the District Court, or further order
Category:	B
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Parties:	JEFFREY MICHAEL CULLOTON GEOFFREY GRANT COSGROVE
Catchwords:	Practice and procedure Application for extension of time to commence appeal Application for extension of time to file and serve appellant's case Application to adduce additional evidence Application for stay of primary proceedings pending disposition of the appeal Application to vacate taxation of costs in the primary court Appellant's application to set aside the judgment in the primary court pursuant to O 34 r 3 of the Rules of the Supreme Court 1971 (WA) Whether appeal should be stayed pending appellant's application to set aside judgment in the District Court
Legislation:	Rules of the Supreme Court 1971 (WA), O 34 r 3 Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 27, r 43(2)
Case References:	Bradshaw v Warlow (1886) 32 Ch D 403 Cosgrove v Culloton [2014] WADC 146 Johnson & Co v Clifford (1905) 7 WAR 240 Policy Nominees Pty Ltd v McDougall (Unreported, WASC, 1991, Library No 8768) Schafer v Blyth [1920] 3 KB 140 Simonsen v Legge [2010] WASCA 238 Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239 Vint v Hudspith (1885) 29 Ch D 322

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CULLOTON -v- COSGROVE [2015] WASCA 25 CORAM : MURPHY JA HEARD : 2 FEBRUARY 2015 DELIVERED : 6 FEBRUARY 2015 FILE NO/S : CACV 139 of 2014 BETWEEN : JEFFREY MICHAEL CULLOTON

Appellant

AND

GEOFFREY GRANT COSGROVE

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : GOETZE DCJ

Citation : COSGROVE -v- CULLOTON [2014] WADC 146

File No : CIV 777 of 2012

Catchwords:

Practice and procedure - Application for extension of time to commence appeal - Application for extension of time to file and serve appellant's case - Application to adduce additional evidence - Application for stay of primary proceedings pending disposition of the appeal - Application to vacate taxation of costs in the primary court - Appellant's application to set aside the judgment in the primary court pursuant to O 34 r 3 of the Rules of the Supreme Court 1971 (WA)…

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 Culloton v Cosgrove

Details

AGLC: Culloton v Cosgrove [2015] WASCA 25
Case: [2015] WASCA 25
Decision Date: 6 FEBRUARY 2015

CaseChat Overview and Summary

In the case of Culloton v Cosgrove, the appellant sought various reliefs from the Supreme Court, including an extension of time to commence an appeal against a judgment of the District Court, as well as extensions of time to file and serve their case. They also requested the opportunity to adduce additional evidence, a stay of the primary proceedings, the vacating of a taxation of costs in the primary court, and the setting aside of the District Court's judgment. The court was required to determine the appropriate timelines for the appellant's case and whether the additional evidence could be considered. It also had to decide if the appeal should be stayed pending the appellant's application to set aside the judgment in the District Court.

The court addressed the legal issues by considering the relevant rules and the principles of procedural fairness. It noted that while the appellant's application for an extension of time to commence the appeal was within the court's discretion, the application for an extension to file and serve the appellant's case was not as straightforward. The court allowed the application for an extension to file and serve the case but referred the application for an extension of time to commence the appeal to the hearing of the appeal. The court also decided that the application to adduce additional evidence should be referred to the hearing of the appeal. The application to vacate the taxation of costs hearing in the District Court was dismissed as the costs had already been assessed.

The court's reasoning led to a dismissal of the application for a stay of the primary proceedings and the appeal was stayed pending the appellant's application to set aside the judgment in the District Court, or further order. The court concluded that the appeal should not proceed until the District Court had determined the application to set aside its judgment. This decision ensured that the appeal process was fair and that all relevant issues were considered by the appropriate court.

The final orders of the court were that the application for a stay of the primary proceedings was dismissed. The application for an extension of time by which to commence the appeal was referred to the hearing of the appeal. The application for an extension of time by which to file and serve the appellant's case was allowed. The application to adduce additional evidence was referred to the hearing of the appeal. The application to vacate the taxation of costs hearing in the District Court was dismissed. The appeal was stayed pending the appellant's application to set aside the judgment in the District Court, or further order.

Orders

Orders of the court

Application for a stay dismissed

Application for an extension of time by which to commence the appeal referred to the hearing of the appeal

Application for an extension of time by which to file and serve the appellant's case allowed

Application to adduce additional evidence referred to the hearing of the appeal

Application to vacate taxation of costs hearing in the District Court dismissed

Appeal stayed pending the appellant's application to set aside the judgment in the District Court, or further order

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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