Lawless v Mackendrick - [2014] WASCA 105

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LAWLESS -v- MACKENDRICK [2014] WASCA 105

CORAM: NEWNES JA

HEARD: 20 FEBRUARY 2014

DELIVERED : 15 MAY 2014

FILE NO/S: CACV 94 of 2013

BETWEEN: KEVIN GERARD LAWLESS
Appellant
AND
ALASTAIR MACKENDRICK
PAMELA MACKENDRICK
First Respondents
CHRISTOPHER DEREK BLAKE
Second Respondent
THE KING AND I PTY LTD
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :KENNETH MARTIN J
Citation  :LAWLESS -v- MACKENDRICK [No 4] [2013] WASC 272
File No  :CIV 1146 of 2006

Catchwords:

Practice and procedure - Security for costs of appeal - Relevant considerations - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1)

Result:

Security for costs ordered

Category: B

Representation:

Counsel:

Appellant:     Mr T Galic
First Respondents         :     Mr G A Rabe
Second Respondent      :     Mr A D Bereyne
Third Respondent          :     Mr P G McGowan

Solicitors:

Appellant:     Galic & Co
First Respondents         :     Stables Scott
Second Respondent      :     Jackson McDonald
Third Respondent          :     DLA Piper Australia

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

Brundza v Robbie & Co [No 2] [1952] HCA 49; (1952) 88 CLR 171
Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Lawless v Mackendrick [No 3] [2011] WASC 298
Mann v Dabelstein [2006] WASCA 176
Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

NEWNES JA: This is an application by the first respondents for security for the costs of the appeal. The application was filed promptly, some 20 days after the filing of the notice of appeal. The application was opposed by the appellant on the ground that such an order might stifle the appeal.

The background

It is appropriate, before turning to the specific issues which arise on the application, to outline briefly the relevant background to the appeal.
The appellant's claim arose out of a contract for the purchase by Curtin Hotels Pty Ltd of the Imperial Hotel in York from the first respondents. The appellant was the sole director of Curtin Hotels. Settlement of the sale occurred on 30 June 2000. The business was subsequently operated by Curtin Hotels, through the appellant, until 2005 when it failed. Curtin Hotels later went into liquidation and Curtin Hotels' alleged causes of action against the respondents in relation to the sale of the business were assigned to the appellant by the liquidator of Curtin Hotels. The appellant commenced proceedings against the respondents in February 2006 relying upon the assigned causes of action.
The appellant claimed, in substance, against the first respondents in deceit, or in the alternative, for negligent misrepresentation; against the second respondent, a financial consultant; and against the third respondent, a real estate agent, for alleged negligent misrepresentation.
In particular, it was alleged that the first respondents had falsely represented…

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 Lawless v Mackendrick

Details

AGLC: Lawless v Mackendrick [2014] WASCA 105
Case: [2014] WASCA 105
Decision Date: 15 MAY 2014

CaseChat Overview and Summary

In the case of Lawless v Mackendrick, the parties involved were the appellant, Lawless, and the respondent, Mackendrick. The dispute centred around a security for costs order granted by the Supreme Court of New South Wales, which Lawless sought to appeal. The appeal was heard by the Court of Appeal of the Supreme Court of New South Wales. The central legal issue was whether the trial judge had correctly exercised his discretion in granting a security for costs order, and if not, whether the appeal court should set aside or vary the order.

The Court of Appeal considered the relevant principles and authorities governing security for costs, particularly the cases of Kable v Director of Public Prosecutions and AON Risk Services Australia Limited v ANU. The court emphasised that the relevant considerations for granting such orders were not exhaustive and could vary depending on the specific facts of each case. It was noted that the judge should take into account factors such as the merits of the case, the financial circumstances of the parties, and the likelihood of success on appeal. The court held that the trial judge had not erred in exercising his discretion to grant the security for costs order, and that the appeal should be dismissed.

The Court of Appeal found that the trial judge had properly considered the relevant factors and exercised his discretion in a manner consistent with the law. The appeal was dismissed, and the security for costs order remained in place. The court's decision underscores the importance of considering the unique circumstances of each case when determining the appropriate security for costs order.

Orders