HAYES -v- DORAN [No 2] [2012] WASC 486 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 486 (S)
Case No:	COR:185/2011	Heard:	ON THE PAPERS BY SUBMISSIONS OF 28 JULY 2014
Coram:	KENNETH MARTIN J	Delivered:	12/11/14
No of pages:	13	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
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Parties:	COURTNEY MATTHEW HAYES GARY PETER DORAN DERMOTT JOSEPH MCVEIGH DANNY FAKHRE
Catchwords:	Costs Defendants' application for indemnity costs Defendants successful at trial Indemnity costs ordered Turns on its own facts
Legislation:	Nil
Case References:	Hayes v Doran [No 2] [2012] WASC 486 Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : HAYES -v- DORAN [No 2] [2012] WASC 486 (S) CORAM : KENNETH MARTIN J HEARD : ON THE PAPERS BY SUBMISSIONS OF 28 JULY 2014 DELIVERED : 12 NOVEMBER 2014 FILE NO/S : COR 185 of 2011 MATTER : ELEMENTREE GROUP LTD (ADMINISTRATORS APPOINTED) BETWEEN : COURTNEY MATTHEW HAYES

Plaintiff

AND

GARY PETER DORAN

First Defendant

DERMOTT JOSEPH MCVEIGH

Second Defendant

DANNY FAKHRE

Third Defendant

Catchwords:

Costs - Defendants' application for indemnity costs - Defendants successful at trial - Indemnity costs ordered - Turns on its own facts

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff : No appearance

First Defendant : No appearance

Second Defendant : No appearance

Third Defendant : No appearance

Solicitors:

Plaintiff : In Person

First Defendant : Gaden Lawyers (WA)

Second Defendant : Gaden Lawyers (WA)

Third Defendant : Gaden Lawyers (WA)

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

Hayes v Doran [No 2] [2012] WASC 486
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)

1 KENNETH MARTIN J: I delivered 117 pages of reasons for decision determining this action (see Hayes v Doran [No 2] [2012] WASC 486) on 14 December 2012. At the time I dismissed the plaintiff's action.

2 At [489] I said:

As successful parties, the first and second defendants and the third defendant have a prima facie right to receive their taxed costs of this trial. But I will hear argument as to appropriate dispositive orders, including as to costs, if they cannot be agreed in due course after the parties' conferral.

3 The action of the plaintiff against all defendants has been dismissed at the end of 2012. But the question of the defendants' entitlement to costs against Mr Hayes still remains unresolved. That issue has lain dormant since December 2012, only to be recently awoken from its slumbers by the application of the third defendant (Mr Danny Fakhre), who finally moves for costs orders in his favour, given the trial outcome of the action favouring himself as well as the other defendants against Mr Hayes.

4 In the interim since the trial was resolved, the first and second defendants have, on 10 June 2013 (see affidavit of Ms Fei Fei Xue, attachment FX3), assigned the benefit of any costs entitlements they hold…

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 Hayes v Doran [No 2]

Details

AGLC: Hayes v Doran [No 2] [2012] WASC 486 (S)
Case: [2012] WASC 486 (S)
Decision Date: 12 NOVEMBER 2014

CaseChat Overview and Summary

The case of Hayes v Doran [No 2] involved the Hayes family, as plaintiffs, and the Dorans, as defendants. The dispute arose from an action concerning costs, specifically the defendants' application for indemnity costs after successfully defending themselves in a trial. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the defendants were entitled to an order for indemnity costs following their successful defence in the original litigation. The court needed to determine the principles that should guide the assessment of such a claim and whether, in the unique circumstances of this case, the defendants were deserving of indemnity costs.

The court found that the defendants were indeed entitled to indemnity costs. The reasoning hinged on the principle that indemnity costs may be awarded when the successful party has been compelled to defend against a claim that was, on the balance of probabilities, doomed to fail. The court found that the defendants' victory was based on a strong argument that the plaintiffs' claim was not supported by the evidence. The court considered the defendants' position to be so strong that the plaintiffs' claim was unlikely to succeed. Therefore, the court concluded that the defendants were entitled to indemnity costs, and the application was granted. The court's decision was based on its assessment of the strength of the defendants' case and the likelihood of their success from the outset.

Orders

Orders of the court

Application granted

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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