GLENDINNING -v- CUZENS [2009] WASCA 21 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASCA 21 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:34/2008	Heard:	8 OCTOBER 2008 & ON THE PAPERS
Coram:	PULLIN JA NEWNES JA	Delivered:	22/01/09
Supplementary Delivered:	3/07/09
No of pages:	6	Judgment Part:	1 of 1
Result:	Appellant to pay respondents' costs below Respondents to pay appellant's costs of appeal
Category:	B
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Parties:	HEATHER GLENDINNING HARLEY STEWART FRANKLYN CUZENS LESLEY FRANCES CUZENS FRANKLYN WILLIAM CUZENS
Catchwords:	Costs Late concession as to inadequacy of indorsement of claim by appellant in court below Appellant to bear costs below Costs of appeal should follow event No disentitling conduct of appellant shown Turns on own facts
Legislation:	Nil
Case References:	Glendinning v Cuzens [2009] WASCA 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GLENDINNING -v- CUZENS [2009] WASCA 21 (S) CORAM : PULLIN JA

NEWNES JA

HEARD : 8 OCTOBER 2008 & ON THE PAPERS DELIVERED : 23 JANUARY 2009 SUPPLEMENTARY
DECISION : 3 JULY 2009 FILE NO/S : CACV 34 of 2008 BETWEEN : HEATHER GLENDINNING

Appellant

AND

HARLEY STEWART FRANKLYN CUZENS

First Respondent

LESLEY FRANCES CUZENS

Second Respondent

FRANKLYN WILLIAM CUZENS

Third Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

File No : CIV 1182 of 2007

(Page 2)

Catchwords:

Costs - Late concession as to inadequacy of indorsement of claim by appellant in court below - Appellant to bear costs below - Costs of appeal should follow event - No disentitling conduct of appellant shown - Turns on own facts

Legislation:

Nil

Result:

Appellant to pay respondents' costs below

Respondents to pay appellant's costs of appeal

Category: B

Representation:

Counsel:

Appellant : No appearance

First Respondent : No appearance

Second Respondent : No appearance

Third Respondent : No appearance

Solicitors:

Appellant : Butcher Paull & Calder

First Respondent : In person

Second Respondent : McCallum Donovan Sweeney

Third Respondent : McCallum Donovan Sweeney

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

Glendinning v Cuzens [2009] WASCA 21

(Page 3)

1 JUDGMENT OF THE COURT: On 23 January 2009, this court granted leave to appeal and allowed an appeal against a decision of Master Sanderson setting aside the appellant's amended writ of summons: Glendinning v Cuzens [2009] WASCA 21. The orders of the Master were set aside and the appellant was given leave to make an application to this court within 14 days to amend the indorsement on the writ, failing which the writ would be set aside.

2 The appellant duly brought such an application and, on 15 May 2009, this court granted leave to amend the indorsement, reserving to the trial judge the date upon which the amendment is to take effect. The appellant was ordered to pay the costs of that application.

3 The court ordered that the question of costs was otherwise to be decided on the papers and directions…

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 Glendinning v Cuzens

Details

AGLC: Glendinning v Cuzens [2009] WASCA 21 (S)
Case: [2009] WASCA 21 (S)
Decision Date: 23 JANUARY 2009

CaseChat Overview and Summary

In the case of Glendinning v Cuzens, the appellant, Glendinning, challenged the respondent, Cuzens, regarding the adequacy of an indorsement of a claim that was submitted in a previous court proceeding. The dispute was brought before the court, which had to determine whether the appellant was entitled to the costs of the appeal. The court below had ruled that the appellant should bear the costs incurred at that stage due to the late concession about the inadequacies in the indorsement of the claim. The appellant argued that the principle that costs should follow the event did not automatically disentitle them from receiving costs of appeal.

The court had to decide if the appellant's late concession regarding the indorsement of the claim in the lower court constituted conduct that should disentitle them from the costs of appeal. The court noted that whether the appellant's conduct was disentitling depended on the specific circumstances of the case. The court found that the appellant did not exhibit any conduct that warranted a disentitling penalty. Instead, the court concluded that the principle of costs following the event should be applied, and the costs of the appeal should be awarded to the appellant.

In light of the findings, the court ruled that the appellant should pay the respondents' costs from the lower court proceedings. Conversely, the respondents were ordered to pay the appellant's costs of appeal. This decision was based on the court's assessment that the appellant's late concession did not amount to disentitling conduct and that the principle of costs following the event should be upheld. This outcome ensured that the financial burden of the appeal was allocated according to the merits of the case, as determined by the court.

Orders

Orders of the court

Appellant to pay respondents' costs below

Respondents to pay appellant's costs of 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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