Kent v STRATTON-KENT - [2024] WASC 488

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KENT -v- STRATTON-KENT [2024] WASC 488
CORAM:   HILL J
HEARD:   ON THE PAPERS
DELIVERED          :   19 DECEMBER 2024
FILE NO/S:   CIV 1044 of 2024
BETWEEN:   ALEXANDER LAWRENCE KENT
LAURA ESTHER KENT
First Plaintiffs

ANDREW RONALD WILLIAM BOWER as attorney pursuant to section 34 Administration Act for LAURA ESTHER KENT
ANDREW RONALD WILLIAM BOWER as attorney pursuant to section 34 Administration Act for ALEXANDER LAWRENCE KENT
Second Plaintiffs

AND

MARIA VIOLET STRATTON-KENT
First Defendant

HUGO AMADEUS KENT
Second Defendant

MARIA VIOLET STRATTON-KENT
Plaintiff by counterclaim

ALEXANDER LAWRENCE KENT
First Defendant by counterclaim

LAURA ESTHER KENT
Second Defendant by counterclaim

ANDREW RONALD WILLIAM BOWER as attorney pursuant to section 34 Administration Act for ALEXANDER LAWRENCE KENT
ANDREW RONALD WILLIAM BOWER as attorney pursuant to section 34 Administration Act for LAURA ESTHER KENT
Defendant by counterclaim

Catchwords:

Costs - Appropriate costs order in series of proceedings which were settled without hearing - Application by first defendant for indemnity costs - Whether indemnity costs orders should be made - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 66 r 1

Supreme Court Act 1935 (WA) s 37

Result:

No order as to costs

Category: B

Representation:

Counsel:

First Plaintiffs	:	No appearance
Second Plaintiffs	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Plaintiff by counterclaim	:	No appearance
First Defendant by counterclaim	:	No appearance
Second Defendant by counterclaim	:	No appearance
Defendant by counterclaim	:	No appearance

Solicitors:

First Plaintiffs	:	Solomon Hollett Lawyers
Second Plaintiffs	:	Solomon Hollett Lawyers
First Defendant	:	Kershaw Legal
Second Defendant	:	No appearance
Plaintiff by counterclaim	:	Kershaw Legal
First Defendant by counterclaim	:	Solomon Hollett Lawyers
Second Defendant by counterclaim	:	Solomon Hollett Lawyers
Defendant by counterclaim	:	Solomon Hollett Lawyers

Cases referred to in decision:

Prichard v Prichard [2015] WASC 170 (S)
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Yara Australia Pty Ltd v Oswal [2012] WASCA 264

HILL J:

On 17 January 2024, the plaintiffs commenced these proceedings against the defendants. These proceedings were commenced as a result of a dispute between the parties as to whether the first defendant should be granted letters of administration in solemn form of the estate of Andrew Leslie Kent (the Deceased).
Between 9 November 2023, when the first defendant filed an application for the grant of letters of administration in solemn form of the estate of the Deceased (Probate Application) and 22 July 2024, when these proceedings were dismissed following the filing of a minute of consent orders, three separate contested applications or proceedings were commenced. First, an appeal from a decision of the Acting Principal Registrar on 2 January 2024 (Appeal), which was dismissed on 28 February 2024. Second, an application for the appointment of an administrator pendente lite (CIV 2454 of 2023) which was dismissed by consent and third, these proceedings. The parties had previously agreed that the costs…

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 Kent v STRATTON-KENT

Details

AGLC: Kent v STRATTON-KENT [2024] WASC 488
Case: [2024] WASC 488
Decision Date: 19 DECEMBER 2024

CaseChat Overview and Summary

In the case of Kent v STRATTON-KENT, the parties involved were Kent and Stratton-Kent, who were engaged in a series of legal proceedings that were eventually settled without a formal hearing. The matter came before the court on an application by the first defendant, Stratton-Kent, seeking an indemnity costs order. The primary issue before the court was whether an order for indemnity costs should be granted, considering the unique circumstances of the case. This decision hinged on the specific facts of the litigation, including the nature of the proceedings, the conduct of the parties, and the rationale behind the settlement.

The court undertook a detailed examination of the proceedings, taking into account the conduct of both parties, the complexity of the issues, and the eventual outcome. It was noted that indemnity costs orders are not routinely granted and are typically reserved for cases where the conduct of one party has been particularly egregious or where the circumstances of the settlement justify such an order. The court considered the procedural history of the case, the arguments presented by both sides, and the broader context of the litigation to determine whether the exceptional circumstances warranted an indemnity costs order. Ultimately, the court concluded that the specific facts of the case did not support such an order, given the absence of particularly egregious conduct or exceptional circumstances that would justify an indemnity costs order.

In light of the court's findings, it decided against making an indemnity costs order. The court emphasised that the decision was based on the particular facts and circumstances of this case, and it did not set a precedent for future cases. The court acknowledged the importance of fairness in the allocation of costs but found that the circumstances did not warrant an indemnity order. The final orders of the court reflected this decision, and no indemnity costs were awarded to the first defendant.

Orders