Dudley v Reece Australia Pty Ltd - [2021] WASC 240

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DUDLEY -v- REECE AUSTRALIA PTY LTD [2021] WASC 240
CORAM:   STRK J
HEARD:   ON THE PAPERS
DELIVERED          :   16 JULY 2021
PUBLISHED           :   16 JULY 2021
FILE NO/S:   CIV 1984 of 2020
BETWEEN:   GREGORY BRUCE DUDLEY
Plaintiff
AND
REECE AUSTRALIA PTY LTD
First Defendant
ELECTRICAL DISTRIBUTORS OF WA PTY LTD
Second Defendant
THE REGISTRAR OF TITLES
Third Defendant
STARCLIP ENTERPRISES PTY LTD trading as MYELEC
Fourth Defendant

Catchwords:

Costs - Substantive questions of the validity and priority of competing claims resolved by agreement - No decision on merits - Appropriate costs order - Whether the position of the first defendant was unreasonable so as to expose the first defendant to an adverse costs order - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

No order as to costs

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Williams & Hughes
First Defendant	:	Trinix Lawyers
Second Defendant	:	Havilah Legal
Third Defendant	:	No appearance
Fourth Defendant	:	Turks Legal (NSW)

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

Gilroy v Lee in her capacity as director, WorkCover Western Australia Authority [2021] WASC 200
Lafferty v Waterton [2016] WASCA 183
Latoudis v Casey (1990) 170 CLR 534
Naidoo v Williamson (2008) 37 WAR 516; [2008] WASCA 179
Northern Territory v Sangare [2019] HCA 25
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council (1998) 193 CLR 72
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Ritter v Godfrey [1920] 2 KB 47
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96
Towercom Pty Ltd v Fahour [No 4] [2013] VSC 585
Wentworth v Attorney-General (NSW) (1984) 154 CLR 518

STRK J:

This proceeding was commenced by a bankruptcy trustee in circumstances where a dispute had arisen concerning the adjudication of claims made by competing creditors of a bankrupt's estate, in the context of a modest estate after the repayment of a first ranking mortgagee.
The validity and priority of the competing claims in the end does not fall to be judicially determined. The parties have reached agreement as to the substantive dispute between them. A minute of proposed orders was filed on 13 May 2021. The minute is reproduced at Schedule A to these reasons.
There remains a contest as to how the costs of the action should be borne, as is revealed in proposed order 6 of the parties' minute. Despite there being no hearing of the merits of the action, adverse costs orders are pressed by the plaintiff, the second and fourth defendants as against the first defendant; and by the first defendant as against the plaintiff.
Programming orders were made for the filing of evidence, submissions and authorities in relation to 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 Dudley v Reece Australia Pty Ltd 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: [2021] WASC 240
Decision Date

CaseChat Overview and Summary

This proceeding was commenced by a bankruptcy trustee in circumstances where a dispute had arisen concerning the adjudication of claims made by competing creditors of a bankrupt's estate, in the context of a modest estate after the repayment of a first ranking mortgagee. The validity and priority of the competing claims in the end does not fall to be judicially determined. The parties have reached agreement as to the substantive dispute between them. A minute of proposed orders was filed on 13 May 2021. The minute is reproduced at Schedule A to these reasons. There remains a contest as to how the costs of the action should be borne, as is revealed in proposed order 6 of the parties' minute. Despite there being no hearing of the merits of the action, adverse costs orders are pressed by the plaintiff, the second and fourth defendants as against the first defendant; and by the first defendant as against the plaintiff. Programming orders were made for the filing of evidence, submissions and authorities in relation to the question of costs, which now falls to be determined on the papers. I propose to make an order dismissing the applications for costs, and otherwise make no order as to costs. I will however give the plaintiff (the bankruptcy trustee) liberty to apply to recover his costs from the bankrupt's estate. The proceeding was not in substance adversarial as between the bankruptcy trustee and the defendants. The court record did not reveal conduct so unreasonable as to justify Reece Australia bearing the costs of all other parties to the proceeding.

Orders