Defendi v Eden Hill Plasterers - [2008] WASCA 269

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DEFENDI -v- EDEN HILL PLASTERERS [2008] WASCA 269

CORAM: MARTIN CJ
McLURE JA
MILLER JA

HEARD: 20 NOVEMBER 2008

DELIVERED : 23 DECEMBER 2008

FILE NO/S: CACV 55 of 2008

BETWEEN: SILVANO DEFENDI as Trustee for THE DEFENDI FAMILY TRUST
Appellant
AND
EDEN HILL PLASTERERS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER HERRON
Citation  :DEFENDI ATF THE DEFENDI FAMILY TRUST -v- EDEN HILL PLASTERERS [2008] WADC 70
File No  :APP 32 of 2006

Catchwords:

Application to strike out appeal - Whether likely costs of the appeal to parties would be disproportionate to the amount of the claim in or the nature of the case the subject of the appeal - Section 43(3) Magistrates Court (Civil Proceedings) Act 2005 (WA) - Principles to be applied

Legislation:

Supreme Court Act 1935 (WA), s 58(1)(i)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40, s 43(3)
Supreme Court (Fees) Regulations 2002 (WA), div 2 sch 1

Result:

Application dismissed

Category: A

Representation:

Counsel:

Appellant: Mr J R Ludlow
Respondent: Mr H M O'Sullivan

Solicitors:

Appellant: Kitto & Kitto
Respondent: SRB Legal

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

Defendi atf the Defendi Family Trust v Eden Hill Plasterers [2008] WADC 70
Fox v Percy (2003) 214 CLR 118
Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273

MARTIN CJ: I agree with Miller JA that this application should be dismissed, for the reasons which he gives. However, I desire to add a few observations of my own.
The respondent asks the court to strike out the appeal pursuant to s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act). The range of factors which can be considered by an appellate court under this provision are much more constrained than would be the case if, for example, the court were considering the grant of leave to appeal. Under the current legislative arrangements (s 42 of the Act), no leave is required to appeal to this court from a decision of the District Court dealing with an appeal from the Magistrates Court in a case which is not a 'minor case' (as defined) in the Act. Under s 43(3) the only matter which can be taken into account by the appellate court is the proportion between the likely costs of the appeal to the parties and the amount of the claim or the nature of the case.
As Miller JA points out, there is nothing unusual about the nature of this case. The evidence suggests that the likely costs of appeal to the parties will be within the ordinary range which one would expect for an appeal to this court. As the amount of the claim slightly exceeds the current jurisdiction of the Magistrates Court, if the likely costs to the parties to this appeal were held to be disproportionate to the amount of the…

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.

Keep reading for free

Create a free CaseChat account to read Defendi v Eden Hill Plasterers and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] WASCA 269
Decision Date: 23 DECEMBER 2008

CaseChat Overview and Summary

The case of Defendi v Eden Hill Plasterers involved a dispute between two parties over a claim for damages. The matter was heard in the Magistrates Court of Western Australia. The first respondent, Defendi, sought to have the appeal struck out on the basis that the costs of the appeal were likely to be disproportionate to the amount of the claim and the nature of the case. The application to strike out the appeal was brought under section 43(3) of the Magistrates Court (Civil Proceedings) Act 2005 (WA).

The central legal issue the court had to decide was whether the costs of the appeal would be disproportionate to the amount of the claim and the nature of the case. The court considered the principles applicable to such applications, including whether the appeal had reasonable prospects of success and whether the costs of the appeal would be excessive in all the circumstances. The court also took into account the potential impact on the administration of justice and the interests of justice more broadly.

After considering the evidence and submissions from both parties, the court dismissed the application to strike out the appeal. The court found that the appeal had reasonable prospects of success and that the costs of the appeal would not be disproportionate to the amount of the claim or the nature of the case. The court also noted that the interests of justice would be best served by allowing the appeal to proceed.

The final orders of the court were that the application to strike out the appeal was dismissed. The appeal was therefore allowed to proceed, and the parties were required to continue with the appeal process. The court's decision was based on a careful consideration of the relevant principles and the facts of the case, and it ensured that the interests of justice were properly balanced against the potential costs of the appeal.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.