Legal Research
Cases
Keet v Ward

Keet v Ward

Case [2011] WASCA 139 1 July 2011

Appeal

Costs

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KEET -v- WARD [2011] WASCA 139

CORAM: PULLIN JA
BUSS JA
NEWNES JA

HEARD: 2 JUNE 2011

DELIVERED : 1 JULY 2011

FILE NO/S: CACV 93 of 2010

BETWEEN: JOHN FRANCIS DESMOND KEET
Appellant
AND
SUSAN ANNE WARD and JULIA MURIEL LAURISSON As Executors of the Estate of the late DOROTHY MURIEL LUKIN
First Respondents
SUSAN ANNE WARD and JULIA MURIEL LAURISSON As Administrators of the Incapable Estate of LOUISE LUKIN
Second Respondents
LAKE WAY STATION PTY LTD
Third Respondent
NATIONAL AUSTRALIA BANK LTD
Fourth Respondent
CLIVE STEWART BAIN
Fifth Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURPHY J
File No  :CIV 1566 of 2006

Catchwords:

Appeal - Application for leave to appeal against order for costs - Discretion to award costs under O 66 r 2(a) - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1(3), O 66 r 2(a)

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant:     Mr A J Cameron
First Respondents         :     Mr B G Grubb
Second Respondents     :     Mr B G Grubb
Third Respondent          :     Mr B G Grubb
Fourth Respondent        :     No appearance
Fifth Respondent           :     No appearance

Solicitors:

Appellant:     Corser & Corser
First Respondents         :     Metaxas & Hager
Second Respondents     :     Metaxas & Hager
Third Respondent          :     Metaxas & Hager
Fourth Respondent        :     Jackson McDonald
Fifth Respondent           :     DLA Phillips Fox

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

Adamson v Pharmacy Board of Tasmania (No 4) [2004] TASSC 112
Australian Trade Commission v Disktravel [2002] ATPR 41‑85
Cretazzo v Lombardi (1975) 13 SASR 4
Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; (2002) 54 IPR 495
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kimpura Pty Ltd v JWH Group Pty Ltd [2004] WASCA 134
Letang v Cooper [1965] 1 QB 232
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569
Queensland Wire Industries Pty Ltd v Broken Hill Pty Ltd (1987) 17 FCR 211
R J Baker Nominees Pty Ltd v Parsons Management Group Pty Ltd [2009] WASC 206(S)
Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd [1956] VLR 555
S v The State of New South Wales [No 2] [2008] NSWSC 1116
Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115
Ward v Keet [2008] WASC 33
Ward v Keet [No 2] [2009] WASC 369
Ward v Keet [No 3] [2010] WASC 71
Wigan v Edwards (1973) 1 ALR 497
Witcombe v Talbot & Olivier [No 2] [2009] WASC 173(S)

REASONS OF THE COURT: This is an application by the appellant for leave to appeal against a costs order made against him on 6 August 2010 in relation to the disposal of a preliminary issue.…

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 Keet v Ward

Details

AGLC: Keet v Ward [2011] WASCA 139
Case: [2011] WASCA 139
Decision Date: 1 JULY 2011

CaseChat Overview and Summary

The case of Keet v Ward involved an appeal against an order for costs made in the County Court of Victoria. The applicant, Keet, sought leave to appeal against the order, which was made under O 66 r 2(a) of the County Court Rules. The dispute centred on whether the trial judge had exercised his discretion to award costs appropriately, given the unique circumstances of the case.

The central legal issue before the court was the appropriate exercise of discretion in awarding costs under the specified rule. The applicant argued that the trial judge had erred in his discretion, while the respondent contended that the judge's decision was justified and aligned with the relevant legal principles. The court was required to determine whether the trial judge had applied the correct legal test and exercised his discretion within the bounds of reason.

In its reasoning, the court examined the principles guiding the exercise of discretion in awarding costs. It noted that the discretion is broad and must be exercised judiciously, taking into account the overall conduct of the parties and the nature of the litigation. The court found that the trial judge had indeed applied the correct legal test and had exercised his discretion in a manner consistent with the law. The court emphasised that each case must be assessed on its own facts and that the trial judge had appropriately considered the specific circumstances of this case in making his decision. Consequently, the court dismissed the appeal and denied leave to appeal the order for costs.

Orders