Daleport Pty Ltd v Bank of Western Australia Ltd

Daleport Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against an order of Davies J granting summary judgment against Mr Walton, a guarantor. The respondent, Bank of Western Australia Ltd, had sought and obtained this summary judgment. The appeal also concerned a separate challenge by the appellant guarantor to an interlocutory order made at first instance. Crucially, it became apparent to both parties during the appeal that the subject matter of the initial challenge, an order that had not in fact been made at first instance, was non-existent.

The primary legal issues before the Court of Appeal were how the discretion as to costs should be exercised in circumstances where an appeal was allowed because the order appealed against had not been made, and where the parties ultimately acknowledged that summary judgment should be set aside. The court also had to consider the appeal concerning the interlocutory order granting summary judgment against the guarantor, which both parties ultimately agreed should be set aside.

The Court of Appeal reasoned that the appeal concerning the non-existent order was rendered moot by the parties' ultimate realisation of this fact. Regarding the summary judgment against the guarantor, the court accepted that it should be set aside. In exercising its discretion on costs, the Court of Appeal noted that while the appellant had succeeded in having the summary judgment set aside, the proceedings had been complicated by the initial challenge to an order that had not been made. Consequently, the court determined that it was appropriate to make no order as to the costs of the proceedings in the Court of Appeal.