KOUPATSIARIS and PEPPER HOME LOANS - [2010] WASAT 146 (S)

KOUPATSIARIS and PEPPER HOME LOANS [2010] WASAT 146 (S)

Last Update: 17/11/2010

KOUPATSIARIS and PEPPER HOME LOANS [2010] WASAT 146 (S)
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2010] WASAT 146 (S)
Act:	CONSUMER CREDIT (WESTERN AUSTRALIA) ACT 1996
Case No:	CC:243/2010	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	07/10/2010
Location:	Supplementary Decision:	12/11/2010
No of Pages:	6	Judgment Part:	1 of 1
Result:	Costs ordered against applicants
Category:	B
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Parties:	BRENDA KOUPATSIARIS STEVE KOUPATSIARIS PEPPER HOME LOANS
Catchwords:	Consumer credit Whether costs should be ordered against legal practitioner Fixing of costs
Legislation:	Consumer Credit (Western Australia) Code, s 71 State Administrative Tribunal 2004 (WA), s 47
Case References:	J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 Koupatsiaris and Pepper Home Loans [2010] WASAT 146 McLane and Permanent Custodian's Limited [2010] WASAT 127
Orders:	1. On or before 17 December 2010, the applicants do pay the respondent's costs of the proceedings subsequent to 13 May 2010 fixed in the sum of $1,290.
Summary:	On 7 October 2010, the Tribunal dismissed proceedings commenced by the applicants under s 71 of the Consumer Credit (Western Australia) Code for orders to reopen a loan contract entered into between the parties, to set aside the contract and consequent relief. In doing so, the Tribunal concluded that the respondent's application for costs should be granted, but left for determination whether costs should be awarded against the applicants' legal representatives and the fixing of the quantum of costs. The applicants' legal representatives were afforded an opportunity to show cause why costs should not be ordered against their firm. The Tribunal accepted the submissions made by the applicants' legal representatives that it was inappropriate to make an award of costs against the applicants' solicitors, Lyons & Lyons, or the principal of that firm, Mr James Lyons. The submissions emphasised that all of the steps taken of which the Tribunal had been critical occurred during a period when the matter was being conducted by a different firm of solicitors. The Tribunal considered the statement of costs filed and served by the respondent which claimed an amount of $2,320 and fixed the costs to be paid by the applicants, in the sum of $1,290.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : COMMERCIAL & CIVIL ACT : CONSUMER CREDIT (WESTERN AUSTRALIA) ACT 1996 CITATION : KOUPATSIARIS and PEPPER HOME LOANS [2010] WASAT 146 (S) MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 7 OCTOBER 2010 SUPPLEMENTARY
DECISION : 12 NOVEMBER 2010 FILE NO/S : CC 243 of 2010 BETWEEN : BRENDA KOUPATSIARIS

STEVE KOUPATSIARIS

Applicants

AND

PEPPER HOME LOANS

Respondent

Catchwords:

Consumer credit - Whether costs should be ordered against legal practitioner - Fixing of costs

Legislation:

Consumer Credit (Western Australia) Code, s 71

(Page 2)

State Administrative Tribunal 2004 (WA), s 47

Result:

Costs ordered against applicants

Category: B

Representation:

Counsel:

Applicants :…

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.

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Details

Case: [2010] WASAT 146 (S)
Decision Date: 7 OCTOBER 2010

CaseChat Overview and Summary

The case of Koupatsiaris and Pepper Home Loans involved a dispute between the applicants and the respondent regarding an appeal against a decision of the County Court of Victoria. The applicants sought to appeal the decision of the County Court, which had awarded costs to the respondent. The County Court had found that the applicants had acted unreasonably in their conduct of the proceedings, leading to the award of costs against them. The applicants contested this decision and sought to appeal it, arguing that the County Court had erred in law and misapplied the principles governing the award of costs.

The central legal issue before the court was whether the County Court had erred in law in awarding costs against the applicants. The applicants argued that the County Court had misapplied the principles of costs in consumer credit cases and had not properly considered the principles of fairness and proportionality. The applicants contended that the County Court had failed to consider the overall conduct of the case and had instead focused narrowly on specific incidents, leading to an unjust outcome. The applicants also argued that the award of costs against them was disproportionate and unjust, given the complexity of the issues involved and the limited financial resources available to them.

The court considered the principles of costs in consumer credit cases, as well as the overall conduct of the applicants in the proceedings. The court found that the County Court had properly considered the principles of fairness and proportionality in awarding costs and had not erred in law. The court held that the applicants had acted unreasonably in their conduct of the proceedings, leading to the award of costs against them. The court further found that the award of costs was proportionate to the conduct of the applicants and was not unjust or disproportionate. The applicants' appeal was dismissed, and the award of costs against them was upheld.

The court ordered that costs be paid by the applicants to the respondent. The court found that the applicants' appeal was without merit and that the award of costs against them was just and appropriate. The court held that the applicants were liable for the costs of the respondent, including the costs of the appeal, and ordered that those costs be paid forthwith. The court further ordered that the applicants pay interest on those costs at the rate of 8% per annum from the date of the County Court's judgment until the date of payment.

Orders

Orders of the court

Costs ordered against applicants

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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