DAVIDSON -v- ELKINGTON [2011] WASC 29 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 29 (S)
Case No:	CIV:2169/2007	Heard:	9 APRIL, 3-5 MAY, 14 JUNE, 18-20 AUGUST 2010
Coram:	HALL J	Delivered:	11/02/11
Supplementary Delivered:	22/03/11
No of pages:	10	Judgment Part:	1 of 1
Result:	No order as to costs
Category:	B
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Parties:	WILLIAM ANGUS DAVIDSON SILVIA DAVIDSON JOHN EDWARD ELKINGTON IRENE JACQUELINE ELKINGTON
Catchwords:	Costs Whether appropriate to apportion on basis of who succeeded on issues Whether any special orders appropriate Where both parties equally successful/unsuccessful No order as to costs Turns on own facts
Legislation:	Legal Profession Act 2008 (WA), s 280(2) Rules of the Supreme Court 1971 (WA), O 66 Transfer of Land Act 1893 (WA), s 129C
Case References:	Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158(S) Davidson v Elkington [2011] WASC 29 Heartlink Ltd v Jones (as liquidator of HL Diagnostics Pty Ltd (In liq) [2007] WASC 254(S) J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (Western Australian Branch) (No 2) (1993) 46 IR 301 Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : DAVIDSON -v- ELKINGTON [2011] WASC 29 (S) CORAM : HALL J HEARD : 9 APRIL, 3-5 MAY, 14 JUNE, 18-20 AUGUST 2010 DELIVERED : 11 FEBRUARY 2011 SUPPLEMENTARY
DECISION : 22 MARCH 2011 FILE NO/S : CIV 2169 of 2007 BETWEEN : WILLIAM ANGUS DAVIDSON

SILVIA DAVIDSON

Plaintiffs

AND

JOHN EDWARD ELKINGTON

IRENE JACQUELINE ELKINGTON

Defendants

(BY ORIGINAL ACTION)

JOHN EDWARD ELKINGTON

IRENE JACQUELINE ELKINGTON

Plaintiffs by Counterclaim

AND

WILLIAM ANGUS DAVIDSON

SILVIA DAVIDSON

Defendants by Counterclaim

(BY COUNTERCLAIM)

(Page 2)

Catchwords:

Costs - Whether appropriate to apportion on basis of who succeeded on issues - Whether any special orders appropriate - Where both parties equally successful/unsuccessful - No order as to costs - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA), s 280(2)

Rules of the Supreme Court 1971 (WA), O 66
Transfer of Land Act 1893 (WA), s 129C

Result:

No order as to costs

Category: B

Representation:

Original Action

Counsel:

Plaintiffs : Mr N D C Dillon

Defendants : Mr A P Hershowitz

Solicitors:

Plaintiffs : Karp Steedman Ross-Adjie

Defendants : Kott Gunning

(Page 3)

Counterclaim

Counsel:

Plaintiffs by Counterclaim : Mr A P Hershowitz

Defendants by Counterclaim : Mr N D C Dillon

Solicitors:

Plaintiffs by Counterclaim : Kott Gunning

Defendants by Counterclaim : Karp Steedman Ross-Adjie

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

Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158(S)
Davidson v Elkington [2011] WASC 29
Heartlink Ltd v Jones (as liquidator of HL Diagnostics Pty Ltd (In liq) [2007] WASC 254(S)
J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (Western Australian Branch) (No 2) (1993) 46 IR 301
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S)

(Page…

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 Davidson v Elkington

Details

AGLC: Davidson v Elkington [2011] WASC 29 (S)
Case: [2011] WASC 29 (S)
Decision Date: 11 FEBRUARY 2011

CaseChat Overview and Summary

In Davidson v Elkington, the parties were in dispute over an agreement regarding property transactions. The matter was heard in the Supreme Court of New South Wales. The central issue was whether costs should be apportioned based on which party succeeded on the issues raised, and if special orders were appropriate in the circumstances where both parties were equally successful and unsuccessful.

The court examined the principle of costs in litigation and noted that traditionally, the losing party pays the costs of the winning party. However, in this case, both parties had succeeded on some issues and failed on others. Given that neither party was entirely victorious or defeated, the court considered it inappropriate to apportion costs on the basis of who succeeded on the issues. The court further deliberated on whether any special orders were warranted but concluded that the facts did not warrant such an order. The court held that the matter's unique circumstances justified no order as to costs.

The court's reasoning was grounded in the principle that costs should reflect the overall outcome of the litigation, rather than fragmented successes and failures on individual issues. The final orders made by the court were that there would be no order as to costs. This decision underscores the importance of considering the broader context and outcomes when determining costs in legal disputes.

Orders

Orders of the court

No order as to costs

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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