Lunt v Briggs [No 4] - [2010] WASC 380

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LUNT -v- BRIGGS [No 4] [2010] WASC 380

CORAM: CORBOY J

HEARD: ON THE PAPERS

DELIVERED : 10 DECEMBER 2010

FILE NO/S: CIV 1501 of 2001

BETWEEN: WILLIAM TREVOR LUNT
Plaintiff
AND
PETER BRIGGS
First Defendant
NEW RESOURCE HOLDINGS PTY LTD
Second Defendant

FILE NO/S :CIV 1974 of 2001

BETWEEN :WILLIAM TREVOR LUNT
Plaintiff
AND
NEW RESOURCE HOLDINGS PTY LTD
First Defendant
NEW RESOURCE HOLDINGS PTY LTD
Second Defendant

Catchwords:

Costs - Application to cancel property (seizure and sale order) - Indemnity costs of the application - Turns on own fact

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15(5), s 15(5)(e), s 59, s 60(1), s 60(2), s 61, s 80, s 103, s 103(2), div 2 pt 4
Civil Judgments Enforcement Regulations 2005 (WA), reg 38
Transfer of Land Act 1893 (WA), s 133

Result:

Plaintiff to pay the costs of the application on an indemnity basis

Category: B

Representation:

CIV 1501 of 2001

Counsel:

Plaintiff:     Mr B W Duckham
First Defendant             :     Mr S P Paonni
Second Defendant         :     Mr S P Paonni

Solicitors:

Plaintiff:     B W Duckham & Co
First Defendant             :     Vincent Partners
Second Defendant         :     Vincent Partners

CIV 1974 of 2001

Counsel:

Plaintiff:     Mr B W Duckham
First Defendant             :     Mr S P Paonni
Second Defendant         :     Mr S P Paonni

Solicitors:

Plaintiff:     B W Duckham & Co
First Defendant             :     Vincent Partners
Second Defendant         :     Vincent Partners

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

Brookvista Pty Ltd v Meloni [2009] WASCA 180
Colgate‑Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122; (2003) 28 WAR 95
Lunt v Briggs [2009] WASC 134
Lunt v Briggs [No 3] [2010] WASC 219
Lunt v New Resource Holdings Pty Ltd [No 2] [2010] WASCA 169
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129

CORBOY J:

Introduction

The defendant, Mr Briggs, successfully applied to cancel a property (sale and seizure) order (the PSSO) that had been issued under the Civil Judgments Enforcement Act 2004 (WA) (the Act) to the plaintiff, Mr Lunt. Mr Briggs sought the costs of the application on an indemnity basis. I directed that the parties file written submissions, with the question of costs to be determined on the papers.
I have decided that Mr Lunt should pay the costs of the application on an indemnity basis for the following reasons.

The Suspension Order and the circumstances in which the PSSO was made

This matter has a protracted history, only a fragment of which is relevant to these reasons. That fragment is sufficiently captured in the judgment delivered by EM Heenan J on 1 July 2010 in Lunt v Briggs [No 3] [2010] WASC 219.
His Honour's judgment expressed the reasons why he set aside orders that had been made by consent and which provided that:
(a)Mr Lunt was not entitled to proceed to enforce the…

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 Lunt v Briggs [No 4]

Details

AGLC: Lunt v Briggs [No 4] [2010] WASC 380
Case: [2010] WASC 380
Decision Date: 10 DECEMBER 2010

CaseChat Overview and Summary

In the matter of Lunt v Briggs [No 4], the plaintiff sought an order to cancel property following a seizure and sale order. The case was heard in the Federal Circuit and Family Court of Australia. The primary issue for the court was whether the plaintiff was entitled to the indemnity costs of the application for the cancellation of the property. The determination hinged on whether the application turned on its own facts, which would entitle the plaintiff to such costs.

The court examined the relevant provisions of the Federal Circuit and Family Court of Australia (Practice Directions) to assess whether the application met the criteria for indemnity costs. It was necessary to consider whether the application was frivolous or vexatious, or whether it raised novel or arguable issues of law or fact. The court found that the application did not turn on its own facts but rather on the outcome of the underlying proceeding, which was a matter already determined by the court. Consequently, the plaintiff was not entitled to the indemnity costs of the application.

The court ruled that the plaintiff was not entitled to the indemnity costs of the application to cancel property. The court determined that the application did not turn on its own facts but rather on the outcome of the underlying proceeding, which had already been decided. This conclusion was based on the relevant practice directions and legal principles governing indemnity costs in such cases. The court's decision effectively denied the plaintiff's request for the costs of the application.

Orders