Ellison v Marshall [No 3] - [2017] WASC 151

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	ELLISON -v- MARSHALL [No 3] [2017] WASC 151
CORAM	:	KENNETH MARTIN J
HEARD	:	10 MAY 2017
DELIVERED	:	15 JUNE 2017
FILE NO/S	:	CIV 3017 of 2015

BETWEEN

: TIA ELLISON

Plaintiff
AND
DENISTON CLIVE MARSHALL
WENDY DOROTHY MARSHALL
First Defendants
PETER MAXWELL LAURANCE
Second Defendant
JEFFREY CHARLES BURCH
MARIANNE AMY BURCH
Third Defendants

Catchwords:

Costs - Indemnity costs orders - Discontinued action - Unreasonable pursuit of action by plaintiff beyond certain time - Costs considerations

Legislation:

Transfer of Land Act 1893 (WA), s 129C

[2017] WASC 151

Result:

Orders that plaintiff meet defendants' costs on indemnity basis after certain date

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett
First Defendants	:	Mr M Howard SC
Second Defendant	:	Mr G R Ritter QC
Third Defendants	:	Mr G R Ritter QC

Solicitors:

Plaintiff	:	Bennett + Co
First Defendants	:	Minter Ellison
Second Defendant	:	HopgoodGanim
Third Defendants	:	HopgoodGanim

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

Clubley v Bochrinis [2005] WASC 24
Durack v de Winton (1998) 9 BPR 16,403
Effeney v Millar Investments Pty Ltd [2011] NSWSC 708
Ellison v Marshall [2016] WASC 122
Ellison v Marshall [No 2] [2016] WASC 333
Hoy v Allerton [2001] QSC 440

J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers

(WA Branch) (No 2) (1993) 46 IR 301

Loclot Pty Ltd v Pullen [2003] NSWSC 67; (2003) 56 NSWLR 592
Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420
Markos v O R Autor [2007] NSWSC 810
Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54
Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35
Re Lewis [1959] NZLR 1040
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341

[2017] WASC 151

Tujilo v Watts [2005] NSWSC 209

[2017] WASC 151

KENNETH MARTIN J

KENNETH MARTIN J: This action was listed for a two day trial to be heard on 10 and 11 May 2017. The action has been the subject of prior interlocutory judgments. In Ellison v Marshall [2016] WASC 122 I acceded to the second and third defendants' application to become parties to this action and join the original defendants, Mr and Mrs Marshall. As may be seen from the schedules attached to those reasons, the dispute concerned the plaintiff's application, commenced by originating summons in December 2015, to 'modify' the terms of her easement rights in respect of the property she owns at 41A Saunders Street Mosman Park. That property is the dominant tenement in respect of easement access/egress rights enjoyed over a strip of land (which is seen marked in Schedule C to those reasons). Mr and Mrs Marshall are the owners of 41 Saunders Street Mosman Park and also the owners of the red strip of land which stretches from their riverside location to meet Saunders Street at…

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 Ellison v Marshall [No 3]

Details

AGLC: Ellison v Marshall [No 3] [2017] WASC 151
Case: [2017] WASC 151
Decision Date: 15 June 2017

CaseChat Overview and Summary

In the matter of Ellison versus Marshall, the case was heard in the Supreme Court of Queensland. The plaintiff, Ellison, had previously discontinued a legal action against the defendant, Marshall, which had been pursued beyond what was deemed a reasonable time. Marshall sought an indemnity costs order against Ellison, arguing that the plaintiff's pursuit of the action was unreasonable after a certain point. The court was required to determine whether the plaintiff's conduct justified the imposition of such costs and, if so, the extent of those costs.

The primary legal issue before the court was whether the plaintiff's conduct in continuing to pursue the action after a certain point constituted an unreasonable course of action, warranting an indemnity costs order against the plaintiff. The court considered the relevant principles governing costs in discontinued actions, focusing on whether the plaintiff had acted unreasonably and whether the defendant's application for indemnity costs was justified. The court also examined the conduct of both parties and the overall circumstances surrounding the discontinuation of the action.

The court found that the plaintiff's conduct in continuing to pursue the action was indeed unreasonable beyond a certain point. The plaintiff had persisted in the litigation despite clear indications that the case was without merit and had caused unnecessary expense to the defendant. The court accepted that the defendant's application for indemnity costs was justified and ordered that the plaintiff pay the defendant's costs from a specified date to the date of the discontinuance. The court carefully balanced the need to deter unreasonable litigation conduct with the need to ensure that the costs order was proportionate and fair.

In conclusion, the court granted the defendant's application for indemnity costs, ordering the plaintiff to pay the defendant's costs from a specified date to the date of discontinuance. The court's decision underscores the importance of reasonable conduct in litigation and the potential consequences of pursuing a case without merit.

Orders