Maas v O'Neill

Case [2013] WASC 379 (S)

MAAS -v- O'NEILL [2013] WASC 379 (S)



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASC 379 (S)
Case No:CIV:2038/201011 FEBRUARY 2014
Coram:PRITCHARD J7/08/14
21Judgment Part:1 of 1
Result: Special costs order made
B
PDF Version
Parties:DEBRA LORRAINE MAAS as Next Friend of MATTHEW JAMES MAAS
HELEN MARY O'NEILL in her capacity as the Executrix of the estate of the late MICHAEL O'NEILL
HELEN MARY O'NEILL

Catchwords:
Costs
Special costs order
Whether extension of time required
Whether special costs order can be made when costs previously agreed by consent and extracted
Whether application to vary costs order

Legislation:
Family Provision Act 1972 (WA)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA)
Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA)

Case References:
Atwell v Roberts [2013] WASCA 37 (S)
Benfield v Australian National Railways Commission (1992) 8 WAR 285
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S)
Cockburn Cement Ltd v Minister for Environment (WA) [2011] WASC 260 (S)
Corp v Robinson [2012] WASC 490 (S)
Debra Lorraine Maas as next friend of Matthew James Maas v O'Neill [2012] WASC 379
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S)
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Feaver v Smith [2008] WADC 72
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S)
Friedman v Barfield (Unreported, WASC, Library No 9760472, 13 November 1997)
Frigger v Lean [2012] WASCA 66
Gould v Vaggelas (1985) 157 CLR 215
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Stowe v Stowe (unreported, WASC (FC), Library No 950556, 14 June 1996)
Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MAAS -v- O'NEILL [2013] WASC 379 (S) CORAM : PRITCHARD J HEARD : 11 FEBRUARY 2014 DELIVERED : 7 AUGUST 2014 FILE NO/S : CIV 2038 of 2010 BETWEEN : DEBRA LORRAINE MAAS as Next Friend of MATTHEW JAMES MAAS
    Plaintiff

    AND

    HELEN MARY O'NEILL in her capacity as the Executrix of the estate of the late MICHAEL O'NEILL
    First Defendant

    AND

    HELEN MARY O'NEILL
    Second Defendant

Catchwords:

Costs - Special costs order - Whether extension of time required - Whether special costs order can be made when costs previously agreed by consent and extracted - Whether application to vary costs order

Legislation:

Family Provision Act 1972 (WA)


Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA)
Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Special costs order made


Category: B


Representation:

Counsel:


    Plaintiff : Mr G A Rabe
    First Defendant : No appearance
    Second Defendant : Ms J McKenzie

Solicitors:

    Plaintiff : Stables Scott
    First Defendant : No appearance
    Second Defendant : MDS Legal


Cases referred…

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Maas v O'Neill [2013] WASC 379 (S)
Case
[2013] WASC 379 (S)
Decision Date

CaseChat Overview and Summary

The matter of Maas v O'Neill involved the applicant seeking a special costs order against the respondent. The parties had previously agreed to a costs order, which was subsequently extracted. The applicant argued that an extension of time was required to make the application and that a special costs order could be made, even though the costs had been agreed upon by consent and extracted. The respondent contended that the application was out of time and that no special costs order should be made.

The court considered whether the application was within the requisite time period and whether a special costs order could be made in circumstances where costs had been previously agreed upon by consent and extracted. The court found that while the application was technically out of time, the applicant had a reasonable excuse for the delay and the application was made promptly once the excuse was known. The court also considered that a special costs order could be made in the circumstances, even where costs had been agreed upon by consent and extracted.

The court made a special costs order in favour of the applicant. The court found that the application was within the requisite time period and that the applicant had a reasonable excuse for the delay. The court also found that a special costs order could be made in the circumstances, even where costs had been agreed upon by consent and extracted. The court noted that the respondent had not demonstrated any prejudice that would result from the making of the special costs order.

The court ordered that the respondent pay the applicant's costs of the application for a special costs order.

Orders

Orders of the court

Special costs order made

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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