Durkan v Sandbank Holdings Pty Ltd

[2008] WASCA 249 (S)

DURKAN -v- SANDBANK HOLDINGS PTY LTD [2008] WASCA 249 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 249 (S)
Court:	THE COURT OF APPEAL (WA)	Published:	09/12/2008
Case No:	CACV:162/2007	Heard:	5 NOVEMBER 2008
Coram:	PULLIN JA BUSS JA MILLER JA	Delivered:	4/11/08
Supplementary Delivered:	1/02/09
No of pages:	3	Judgment Part:	1 of 1
Result:	Appellants to pay the respondent's costs of the appeal
Category:	B
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Parties:	MONIKA DURKAN MONIKA DURKAN as Administrator of the Estate of the late MARTIN DURKAN SANDBANK HOLDINGS PTY LTD
Catchwords:	Costs Appeal dismissed Costs to follow events
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DURKAN -v- SANDBANK HOLDINGS PTY LTD [2008] WASCA 249 (S) CORAM : PULLIN JA

BUSS JA
MILLER JA

HEARD : 5 NOVEMBER 2008 DELIVERED : 5 NOVEMBER 2008 PUBLISHED : 10 DECEMBER 2008 SUPPLEMENTARY
DECISION : 2 FEBRUARY 2009 FILE NO/S : CACV 162 of 2007 BETWEEN : MONIKA DURKAN

MONIKA DURKAN as Administrator of the Estate of the late MARTIN DURKAN
Appellants

AND

SANDBANK HOLDINGS PTY LTD
Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : ACTING MASTER CHAPMAN

Citation : SANDBANK HOLDINGS PTY LTD v DURKAN

File No : COR 143 of 2007

Catchwords:

Costs - Appeal dismissed - Costs to follow events

Legislation:

Nil

Result:

Appellants to pay the respondent's costs of the appeal

Category: B

Representation:

Counsel:

Appellants : Ms R J Lee
Respondent : Mr B Wheatley

Solicitors:

Appellants : Ginbey & Co
Respondent : Mossensons

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

Nil

(Page 3)

1 REASONS FOR JUDGMENT OF THE COURT: After the court dismissed the appeal, the question of costs was reserved for decision. The parties were granted leave to make written submissions. Written submissions filed by both parties have been considered by the court. The appellants submit that each party should pay their own costs. The respondent submits that costs should follow the event.

2 The appeal in this case was dismissed, not because the court concluded that the acting master erred or was correct, but because there was an 'other reason' for dismissing the appeal. There were a number of factors leading the court to that conclusion. One was the imminent trial in the District Court which was to decide the merit of the offsetting claim which the respondent had raised by way of counterclaim. Other factors were that no application had been made in the District Court for summary judgment and no application had been made to expedite the hearing of the appeal.

3 Those factors are all important in relation to the question of costs. The first factor was the failure of the appellants to apply for summary judgment in the District Court. If, as the appellants contend, there was no genuine offsetting claim, then an application for summary judgment was likely to have succeeded. Such an application could have been made and determined in 2004 or early 2005, which was long before the appellants prepared its statutory demand dated 14 September 2007. Because the appellants did not apply for summary judgment, other steps were taken and costs orders made, in relation to which the statutory demand was issued. The appeal against the acting master's decision to set aside the statutory demand was not then made the subject of any application for expedition. The result was that this court was called to make a decision about whether the offsetting claim was genuine (but not to determine the claim) within about a month from the date of trial in which the merit of the offsetting claim would be upheld or dismissed.

4 As a result, costs should follow the event. The appellants should pay the respondent's costs of the appeal to be taxed.