Kudrin v City of Mandurah
[2012] WASCA 65 (S)
•27 MARCH 2012
KUDRIN -v- CITY OF MANDURAH [2012] WASCA 65 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 65 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:2/2011 | 16 DECEMBER 2011 & ON THE PAPERS | |
| Coram: | BUSS JA NEWNES JA ALLANSON J | 27/03/12 | |
| 3/05/12 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to pay respondent's costs to be taxed | ||
| B | |||
| PDF Version |
| Parties: | NIKOLAI KUDRIN MARIA KUDRIN CITY OF MANDURAH |
Catchwords: | Practice and procedure Costs Successful party entitled to order for costs Turns on its own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1 |
Case References: | Kudrin v City of Mandurah [2012] WASCA 65 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KUDRIN -v- CITY OF MANDURAH [2012] WASCA 65 (S) CORAM : BUSS JA
- NEWNES JA
ALLANSON J
DECISION : 3 MAY 2012 FILE NO/S : CACV 2 of 2011 BETWEEN : NIKOLAI KUDRIN
- First Appellant
MARIA KUDRIN
Second Appellant
AND
CITY OF MANDURAH
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WISBEY DCJ
File No : CIV 1629 of 2009
(Page 2)
Catchwords:
Practice and procedure - Costs - Successful party entitled to order for costs - Turns on its own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1
Result:
Appellant to pay respondent's costs to be taxed
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : In person
Respondent : Mr J Eller
Solicitors:
First Appellant : In person
Second Appellant : In person
Respondent : John Eller
Case(s) referred to in judgment(s):
Kudrin v City of Mandurah [2012] WASCA 65
(Page 3)
1 JUDGMENT OF THE COURT: On 27 March 2012, we dismissed an appeal by the appellants against a decision of Wisbey DCJ in the District Court striking out the appellants' statement of claim as disclosing no arguable claim and dismissing their action for negligence against the respondent: Kudrin v City of Mandurah [2012] WASCA 65. The appellants, who are both elderly, did not attend when judgment was delivered and were given an opportunity to make written submissions on costs. Both parties have now filed and served submissions on costs and, in accordance with an order made on 27 March 2012, the question of costs is to be determined on the papers.
Background
2 The appellants' action had its origins in 1993 when the appellants' neighbours erected a retaining wall just inside and parallel to the boundary fence between the two properties. The appellants believed that the retaining wall had not been constructed in accordance with the plans approved by the respondent, the local authority, and that the construction was inadequate.
3 On 20 February 2003, following complaints by the appellants, the respondent issued to the neighbours a notice under s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (the Act). The notice stated that the retaining wall had not been constructed in accordance with the plans approved by the respondent and required the neighbours to alter the retaining wall so as to bring it into conformity with the approved plans. An appeal by the neighbours to the relevant minister was dismissed on 4 June 2003.
4 On 18 June 2003, the respondent wrote to the neighbours saying (relevantly) that it was prepared to allow the retaining wall to remain provided the neighbours provided evidence from a licensed land surveyor that the retaining wall could be kept within the boundaries of their property and a professional engineer had certified its structural integrity. The neighbours satisfied those requirements.
5 In 2006, there was a further dispute as to whether the retaining wall was moving but following an exchange of conflicting engineering reports the respondent took no action in relation to the matter.
6 The appellants subsequently brought an action in the District Court against the respondent claiming, in effect, that it was negligent in failing to enforce the s 401 notice and alleging that they had suffered inconvenience and emotional distress as a result.
(Page 4)
7 The appellants' first statement of claim was struck out by a registrar on, among others, the ground that the appellants had not obtained leave to bring the action as required by s 47A(3) of the Limitation Act 1935 (WA). On appeal, a judge of the District Court granted the appellants leave under that provision to bring an action against the respondent with respect to any cause of action arising from the respondent's acts or omissions relating to the retaining wall following the dismissal, on 4 June 2003, of the neighbours' appeal against the s 401 notice.
8 The appellants commenced fresh proceedings but their statement of claim in that action was struck out. A substituted statement of claim was subsequently struck out by the primary judge, who dismissed the action.
9 We dismissed the appellants' appeal against that decision on the ground that the respondent owed no duty of care to the appellants to take action to enforce the s 401 notice.
The parties' submissions
10 The appellants resist an order that they pay the respondent's costs of the appeal. They say, in effect, that the actions and the appeal were brought in good faith and that they were encouraged to believe they had an arguable cause of action by comments made by the registrar, and by the judge who granted leave under s 47A(3) of the Limitation Act. The appellants also say that two ministers of the crown to whom they had complained about the retaining wall had told them that responsibility lay with the respondent, leading the appellants to commence the action against the respondent in the first place.
11 The respondent's position is simply that as the successful party it is entitled to an order for its costs.
Disposition
12 The court has a wide discretion as to costs, but the general rule is that a successful party is entitled to an order for its costs: O 66 r 1, Rules of the Supreme Court 1971 (WA). That is because it is ordinarily a just outcome that the party who turns out to have unjustifiably either brought another party before the court, or required another party to have to resort to the court to obtain their rights, should be required to recompense that party for the costs they have incurred: Dal Pont GE, Law of Costs (3rd ed, 2009) [7.2]. The court may depart from the general rule if, in the circumstances of the case, it would not result in a just outcome. In the
(Page 5)
- present case, however, no reason has been shown which would disentitle the respondent to an order for costs.
13 There can be no doubt that the appellants pursued the appeal in the sincere belief that they had a good claim against the respondent. That, of course, does not distinguish them from almost every other unsuccessful litigant. And while they evidently took great comfort from what they understood to be said as to their prospects of success by the registrar, and by the judge on the hearing of the application under s 47A(3) of the Limitation Act, it is apparent that they misunderstood the reservations which were attached to what was said on those occasions. That may well be attributable to language difficulties, English not being the appellants' first language. But whatever may have led the appellants to pursue the appeal, it is not sufficient to depart from the general rule that the unsuccessful party must pay the costs of the successful party.
Conclusion
14 There will be an order that the appellants are to pay the respondent's costs of the appeal to be taxed.
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