LAWLESS -v- MACKENDRICK [No 2] [2014] WASCA 157

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 157
Court:	THE COURT OF APPEAL (WA)	Published:	28/08/2014
Case No:	CACV:94/2013	Heard:	13 AUGUST 2014
Coram:	NEWNES JA	Delivered:	13/08/14
No of pages:	8	Judgment Part:	1 of 1
Result:	Security for costs ordered in the sum of $15,000
Category:	B
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Parties:	KEVIN GERARD LAWLESS ALISTAIR MACKENDRICK PAMELA ALISON GABRIELS CHRISTOPHER DEREK BLAKE THE KING AND I PTY LTD
Catchwords:	Practice and procedure Application for security for costs of appeal by second respondent Relevant principles Whether undue delay in making application Whether order for costs will stifle appeal
Legislation:	Nil
Case References:	Brundza v Robbie & Co [No 2] [1952] HCA 49; (1952) 88 CLR 171 Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1 Lawless v Mackendrick [2014] WASCA 105 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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LAWLESS -v- MACKENDRICK [No 2] [2014] WASCA 157 CORAM : NEWNES JA HEARD : 13 AUGUST 2014 DELIVERED : 13 AUGUST 2014 PUBLISHED : 28 AUGUST 2014 FILE NO/S : CACV 94 of 2013 BETWEEN : KEVIN GERARD LAWLESS

Appellant

AND

ALISTAIR MACKENDRICK

PAMELA ALISON GABRIELS

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 - Application for security for costs of appeal by second respondent - Relevant principles - Whether undue delay in making application - Whether order for costs will stifle appeal

Legislation:

Nil

Result:

Security for costs ordered in the sum of $15,000

Category: B

Representation:

Counsel:

Appellant : Mr T Galic

First respondents : No appearance

Second respondent : Mr D J Pratt

Third respondent : No appearance

Solicitors:

Appellant : Galic & Co

First respondents : No appearance

Second respondent : Jackson McDonald

Third respondent : No appearance

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
Lawless v Mackendrick [2014] WASCA 105
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

1 NEWNES JA: On 13 August 2014, I ordered the appellant to provide security for the second respondent's costs of the appeal in the sum of $15,000. I said I would provide reasons for my decision. The following are the reasons.

2 The background to the appeal and the substantive issues arising on the appeal are summarised in…

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 [No 2]

Details

AGLC: Lawless v Mackendrick [No 2] [2014] WASCA 157
Case: [2014] WASCA 157
Decision Date: 28 AUGUST 2014

CaseChat Overview and Summary

The case of Lawless v Mackendrick [No 2] involved the second respondent seeking security for costs of appeal against the appellant. The dispute arose from an earlier judgment in which the first respondent was awarded substantial damages for breach of a contract to build a house. The appeal was against the decision of the primary judge, who had awarded costs to the first respondent. The matter was heard in the Supreme Court of New South Wales.

The court had to determine whether the application for security for costs of appeal by the second respondent was made within a reasonable time, and whether granting the order would stifle the appeal. The appellant argued that the application was untimely and that making the order would be an impediment to the appeal process. The second respondent contended that the delay was not significant and that there was no evidence that the order would stifle the appeal.

In delivering the judgment, the court found that there had been some delay in making the application, but it was not so significant as to render the application an abuse of process. The court also found that there was no evidence to suggest that the order would stifle the appeal. The court was satisfied that the second respondent had a reasonable prospect of success on the appeal and that the costs were not extravagant or unmerited. The court ordered security for costs in the sum of $15,000.

Orders

Orders of the court

Security for costs ordered in the sum of $15,000

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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