FRASER -v- BURSWOOD RESORT (MANAGEMENT) LTD [2014] WASCA 130 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 130 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:9/2013	Heard:	ON THE PAPERS
Coram:	MARTIN CJ McLURE P NEWNES JA	Delivered:	24/02/15
No of pages:	6	Judgment Part:	1 of 1
Result:	Appellant to pay 80% of respondent's costs of the appeal No order with respect to costs of notice of contention or cross-appeal
Category:	B
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Parties:	TRACEY KATHLEEN FRASER BURSWOOD RESORT (MANAGEMENT) LTD
Catchwords:	Costs Whether unsuccessful notice of contention and cross-appeal justify departure from general rule that successful party should recover its costs Whether issues discrete and severable Whether costs increased in significant and readily discernible way Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 1(3) Supreme Court Act 1935 (WA), s 37
Case References:	Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) Carey v Commissioner for Consumer Protection [2013] WASCA 195 (S) Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FRASER -v- BURSWOOD RESORT (MANAGEMENT) LTD [2014] WASCA 130 (S) CORAM : MARTIN CJ

McLURE P

NEWNES JA

HEARD : ON THE PAPERS DELIVERED : 24 FEBRUARY 2015 FILE NO/S : CACV 9 of 2013 BETWEEN : TRACEY KATHLEEN FRASER

Appellant

AND

BURSWOOD RESORT (MANAGEMENT) LTD

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : STEVENSON DCJ

Citation : FRASER (nee BUTCHER) -v- BURSWOOD RESORT (MANAGEMENT) LTD [2012] WADC 175

File No : CIV 2590 of 2007

Catchwords:

Costs - Whether unsuccessful notice of contention and cross-appeal justify departure from general rule that successful party should recover its costs - Whether issues discrete and severable - Whether costs increased in significant and readily discernible way - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 1(3)

Supreme Court Act 1935 (WA), s 37

Result:

Appellant to pay 80% of respondent's costs of the appeal

No order with respect to costs of notice of contention or cross-appeal

Category: B

Representation:

Counsel:

Appellant : Mr G Droppert

Respondent : Ms B A Mangan

Solicitors:

Appellant : CLP Legal Pty Ltd

Respondent : Jarman McKenna

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

Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S)
Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S)
Carey v Commissioner for Consumer Protection [2013] WASCA 195 (S)
Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130
Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85

1 REASONS OF THE COURT: For reasons published earlier, this court dismissed the appeal, the respondent's…

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.

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Details

Case: [2014] WASCA 130 (S)
Decision Date: 24 FEBRUARY 2015

CaseChat Overview and Summary

Fraser v Burswood Resort (Management) Ltd involved a dispute between Fraser and Burswood Resort regarding the assessment of costs in the context of an appeal. Fraser, the appellant, contested the costs awarded to Burswood Resort, the respondent, in the appeal, arguing that the unsuccessful notice of contention and cross-appeal should not justify a departure from the general rule that the successful party should recover its costs. Fraser contended that the issues were discrete and severable, and that the costs were not significantly and readily discernible as a result of the notice of contention and cross-appeal. The central issue before the court was whether the unsuccessful notice of contention and cross-appeal justified a departure from the general rule regarding costs recovery.

The court considered the nature of the unsuccessful notice of contention and cross-appeal, and whether the issues were discrete and severable. It was noted that the unsuccessful notice of contention and cross-appeal did not significantly and readily discernible increase the costs of the appeal. The court held that the issues were not discrete and severable, and that the unsuccessful notice of contention and cross-appeal did not warrant a departure from the general rule. The court found that the unsuccessful notice of contention and cross-appeal did not significantly and readily discernible increase the costs of the appeal, and that the general rule should apply.

In light of the above, the court ordered that the appellant, Fraser, should pay 80% of the respondent's costs of the appeal. The court did not make any order with respect to the costs of the notice of contention or cross-appeal. This decision reinforces the importance of considering the nature of unsuccessful appeals when determining costs and highlights the need for a balanced approach in assessing costs in complex cases.

Orders

Orders of the court

Appellant to pay 80% of respondent's costs of the appeal

No order with respect to costs of notice of contention or cross-appeal

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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