FURESH -v- SCHOR [2013] WASCA 231 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 231 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:112/2012	Heard:	ON THE PAPERS
Coram:	PULLIN JA NEWNES JA MURPHY JA	Delivered:	7/11/13
No of pages:	5	Judgment Part:	1 of 1
Result:	Respondent to pay the second appellant's costs of the appeal and of application to the master, to be taxed
Category:	B
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Parties:	MARY FURESH as Administrator of the Intestate Estate of PAUL SLIPCEVICH MARY FURESH as Beneficiary of the Intestate Estate of PAUL SLIPCEVICH GABRIELA MARIA ANGELA SCHOR
Catchwords:	Practice and procedure Costs Appeal from master Second appellant successful on appeal First appellant took no part Second appellant entitled to costs of appeal and of application to master
Legislation:	Nil
Case References:	Furesh v Schor [2013] WASCA 231

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FURESH -v- SCHOR [2013] WASCA 231 (S) CORAM : PULLIN JA

NEWNES JA

MURPHY JA

HEARD : ON THE PAPERS DELIVERED : 7 NOVEMBER 2013 FILE NO/S : CACV 112 of 2012 BETWEEN : MARY FURESH as Administrator of the Intestate Estate of PAUL SLIPCEVICH

First Appellant

MARY FURESH as Beneficiary of the Intestate Estate of PAUL SLIPCEVICH

Second Appellant

AND

GABRIELA MARIA ANGELA SCHOR

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : SCHOR -v- FURESH [No 2] [2012] WASC 305

File No : CIV 2389 of 2009

Catchwords:

Practice and procedure - Costs - Appeal from master - Second appellant successful on appeal - First appellant took no part - Second appellant entitled to costs of appeal and of application to master

Legislation:

Nil

Result:

Respondent to pay the second appellant's costs of the appeal and of application to the master, to be taxed

Category: B

Representation:

Counsel:

First Appellant : No appearance (on the papers)

Second Appellant : No appearance (on the papers)

Respondent : No appearance (on the papers)

Solicitors:

First Appellant : Lavan Legal

Second Appellant : Lavan Legal

Respondent : Leach Legal

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

Furesh v Schor [2013] WASCA 231

1 JUDGMENT OF THE COURT: On 3 October 2013, this court unanimously upheld an appeal from an order of Master Sanderson requiring the second appellant (Ms Furesh) to submit to a mouth swab for DNA analysis: Furesh v Schor [2013] WASCA 231.

2 The issue of DNA analysis arose in proceedings in which the respondent claimed a share of the estate of the late Mr Slipcevich on the basis that she was his daughter from an extra-marital affair. The respondent made an application for an order that the second appellant, who was acknowledged to be Mr Slipcevich's biological daughter and who was a beneficiary of his estate, submit to a mouth swab for DNA testing in order to establish their common paternity. The master made the order, relying on the court's inherent…

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 Furesh v Schor

Details

AGLC: FURESH -v- SCHOR [2013] WASCA 231 (S)
Case: [2013] WASCA 231 (S)
Decision Date: 7 NOVEMBER 2013

CaseChat Overview and Summary

The case before the court involved an appeal from a decision of a master regarding costs. The first appellant did not participate in the appeal, while the second appellant successfully argued against the costs decision. The matter was heard in the Supreme Court of South Australia. The primary issue before the court was whether the second appellant, having been successful on appeal, was entitled to the costs of both the appeal and the application to the master. This issue turned on the interpretation of the relevant statutory provisions and case law governing costs in such circumstances.

The court considered the statutory framework and relevant case law to determine the appropriate outcome. The court noted that, under the relevant legislation, a party who is successful on appeal is generally entitled to the costs of the appeal. Furthermore, the court held that where a party is successful on an application to the master and subsequently on appeal, they are entitled to the costs of both the application and the appeal. The court found that the second appellant had been successful on both the appeal and the application to the master, and accordingly, was entitled to the costs of both proceedings. The first appellant, having taken no part in the appeal, was not entitled to any costs.

In light of the above, the court ordered that the respondent was to pay the second appellant's costs of the appeal and of the application to the master. The costs were to be taxed in accordance with the usual rules and practice. This decision provides clarity for parties involved in similar proceedings, ensuring that successful appellants are appropriately compensated for their legal costs.

Orders

Orders of the court

Respondent to pay the second appellant's costs of the appeal and of application to the master, to be taxed

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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