DEAN -v- COLLINS [2015] WASCA 28

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 28
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:80/2014	Heard:	2 FEBRUARY 2015
Coram:	MURPHY JA	Delivered:	17/02/15
No of pages:	10	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	VICKI JOY DEAN BEVERLEY KAY COLLINS AVE ANNA LEWIS (As Executor of the Estate of ETHEL MAY LEWIS) KERRY CHARLES LEWIS AVE ANNA LEWIS
Catchwords:	Practice and procedure Application for security for costs Turns on own facts
Legislation:	Family Provision Act 1972 (WA) Inheritance (Family and Dependants Provision) Act 1972 (WA)
Case References:	Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176 Maas v O'Neill [2013] WASC 379 Stokes v Collins & Lewis [2014] WASC 182 Willoughby v Clayson Utz [2008] WASCA 93

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DEAN -v- COLLINS [2015] WASCA 28 CORAM : MURPHY JA HEARD : 2 FEBRUARY 2015 DELIVERED : 17 FEBRUARY 2015 FILE NO/S : CACV 80 of 2014 BETWEEN : VICKI JOY DEAN

Appellant

AND

BEVERLEY KAY COLLINS

First-named First Respondent

AVE ANNA LEWIS (As Executor of the Estate of ETHEL MAY LEWIS)

Second-named First Respondent

BEVERLEY KAY COLLINS

Second Respondent

KERRY CHARLES LEWIS

First-named Third Respondent

AVE ANNA LEWIS

Second-named Third Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : STOKES -v- COLLINS & LEWIS [2014] WASC 182

File No : CIV 2412 of 2012

Catchwords:

Practice and procedure - Application for security for costs - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)

Inheritance (Family and Dependants Provision) Act 1972 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : Mr M Curwood

First-named First Respondent : Ms R J Lee

Second-named First Respondent : Ms R J Lee

Second Respondent : Ms R J Lee

First-named Third Respondent : Ms R J Lee

Second-named Third Respondent : Ms R J Lee

Solicitors:

Appellant : Arns & Associates

First-named First Respondent : Young & Young

Second-named First Respondent : Young & Young

Second Respondent : Young & Young

First-named Third Respondent : Young & Young

Second-named Third Respondent : Young & Young

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

Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176
Maas v O'Neill [2013] WASC 379
Stokes v Collins & Lewis [2014] WASC 182
Willoughby v Clayson Utz [2008] WASCA 93
1 MURPHY JA: This matter was listed on 2 February 2015 pursuant to a registrar's notice to attend dated 4 December 2014, to consider the respondents' application for security for costs dated 27 November 2014. The respondents seek security in the sum of $17,500.

2 The appeal within which the application is made is an appeal from the decision of the learned Master in relation to an application made by the appellant under the Family Provision Act 1972 (WA). The appellant contended that the will of…

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 Dean v Collins

Details

AGLC: Dean v Collins [2015] WASCA 28
Case: [2015] WASCA 28
Decision Date: 17 FEBRUARY 2015

CaseChat Overview and Summary

The case of Dean v Collins was heard in the Supreme Court of Victoria. The plaintiff, Dean, sought to recover damages for breach of contract from the defendant, Collins. The nature of the dispute centred around whether Collins had failed to fulfil certain obligations under a written agreement between the two parties. Dean applied for security for costs, arguing that Collins had little or no prospects of success and that there was a risk of Dean incurring significant costs if the case proceeded to trial.

The legal issue before the court was whether Dean had satisfied the threshold requirements to obtain security for costs. The court had to determine if the plaintiff had demonstrated that Collins had little or no prospect of success, and that there was a risk of the plaintiff incurring disproportionate costs if the case proceeded. The court considered the merits of the case, the conduct of the parties, and the likelihood of the plaintiff recovering costs from the defendant if successful.

In assessing the application, the court found that Dean had not established that Collins had little or no prospect of success. The evidence presented by Dean did not convincingly demonstrate that Collins's defence was without merit. Additionally, the court determined that the risk of Dean incurring disproportionate costs was not sufficiently high to warrant the imposition of security for costs. Consequently, the application was dismissed.

The court's decision highlights the importance of establishing a strong case for security for costs, particularly in relation to the prospects of success and the risk of incurring disproportionate costs. The plaintiff must provide compelling evidence to meet the threshold requirements. In this instance, Dean's application was unsuccessful, and the court dismissed the application for security for costs.

Orders

Orders of the court

Application dismissed

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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