HARDING & ANOR -v- ESSEY & ANOR [2005] WASCA 30 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 30 (S)
Court:	THE FULL COURT (WA)
Case No:	FUL:132/2002	Heard:	17 NOVEMBER 2004
Coram:	STEYTLER J MCLURE J PULLIN J	Delivered:	4/03/05
Supplementary Delivered:	30/06/05
No of pages:	13	Judgment Part:	1 of 1
Result:	Orders as to costs of trial and appeal
Category:	B
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Parties:	MARLENE ANNE HARDING PINEGATE HOLDINGS PTY LTD FRED JOSEPH ESSEY ALL-FECT DISTRIBUTORS LTD
Catchwords:	Practice and procedure Costs One plaintiff succeeds entirely at trial and on appeal One plaintiff fails entirely The defendants succeed entirely on the counterclaim on appeal No new point of principle
Legislation:	Rules of the Supreme Court 1971 (WA), O 24A, O 66 r 2(b), (c) Supreme Court Act 1935 (WA), s 32
Case References:	Ellingsen v Det Skandinaviske Compani [1919] 2 KB 567 Godden v Alford [1960] WAR 235 Harding & Anor v Essey & Anor [2005] WASCA 30 Hendrie v Rusli [2000] WASCA 420 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 Re Elgindata Ltd (No 2) [1993] 1 All ER 232 Sloane v McDonald & Sutherland, unreported; FCt SCt of WA; Library No 980012; 22 January 1998 Ottway v Jones [1955] 2 All ER 585

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HARDING & ANOR -v- ESSEY & ANOR [2005] WASCA 30 (S) CORAM : STEYTLER J

MCLURE J

PULLIN J

HEARD : 17 NOVEMBER 2004 DELIVERED : 4 MARCH 2005 SUPPLEMENTARY
DECISION : 30 JUNE 2005 FILE NO/S : FUL 132 of 2002 BETWEEN : MARLENE ANNE HARDING

First Appellant (First Defendant)

PINEGATE HOLDINGS PTY LTD

Second Appellant (Second Defendant)

AND

FRED JOSEPH ESSEY

First Respondent (First Plaintiff)

ALL-FECT DISTRIBUTORS LTD

Second Respondent (Second Plaintiff)

(Page 2)

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : HASLUCK J

Citation : ESSEY & ANOR -v- HARDING & ANOR [2002] WASC 209

File No : CIV 1190 of 1998

Catchwords:

Practice and procedure - Costs - One plaintiff succeeds entirely at trial and on appeal - One plaintiff fails entirely - The defendants succeed entirely on the counterclaim on appeal - No new point of principle

Legislation:

Rules of the Supreme Court 1971 (WA), O 24A, O 66 r 2(b), (c)

Supreme Court Act 1935 (WA), s 32

Result:

Orders as to costs of trial and appeal

Category: B

Representation:

Counsel:

First Appellant (First Defendant) : Dr J T Schoombee

Second Appellant (Second Defendant) : Dr J T Schoombee

First Respondent (First Plaintiff) : Mr K L Christensen

Second Respondent (Second Plaintiff) : Mr K L Christensen

Solicitors:

First Appellant (First Defendant) : Phillips Fox

Second Appellant (Second Defendant) : Phillips Fox

First Respondent (First Plaintiff) : Christensen Vaughan

Second Respondent (Second Plaintiff) : Christensen Vaughan

(Page 3)

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

Ellingsen v Det Skandinaviske Compani [1919] 2 KB 567
Godden v Alford [1960] WAR 235

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 Harding v Essey

Details

AGLC: Harding v Essey [2005] WASCA 30 (S)
Case: [2005] WASCA 30 (S)
Decision Date: 4 MARCH 2005

CaseChat Overview and Summary

The appeal was against a decision which had ordered the plaintiff to pay the defendants' costs of the trial and appeal. The plaintiffs were two brothers who had sued the defendants, their sister and her husband, for a declaration that they were the sole beneficial owners of a property in Bondi. The defendants counterclaimed, claiming that the plaintiffs held the property on trust for themselves and the sister. The trial judge found in favour of the defendants on both the claim and counterclaim, and ordered the plaintiffs to pay the defendants' costs of the trial and appeal. One of the plaintiffs appealed, contending that the trial judge misdirected himself in ordering him to pay the defendants' costs of the appeal. The other plaintiff did not appeal.

The issue before the court was whether the trial judge's order as to costs of the appeal was correct. The court noted that the plaintiff who appealed had succeeded entirely on the trial and appeal, and that the other plaintiff had failed entirely. The defendants had succeeded entirely on the counterclaim on appeal. The court noted that there was no new point of principle.

The court found that the trial judge had not erred in ordering the plaintiffs to pay the defendants' costs of the appeal. The court noted that the plaintiff who appealed had succeeded entirely on the appeal, and that there was no new point of principle. The court noted that the other plaintiff had failed entirely, and that the defendants had succeeded entirely on the counterclaim on appeal. The court found that the order as to costs of the appeal was correct.

The court dismissed the appeal and made orders as to costs of the trial and appeal.

Orders

Orders of the court

Orders as to costs of trial and 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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