Magenta Nominees Pty Ltd v Webb - [2000] WASCA 403

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: MAGENTA NOMINEES PTY LTD -v- WEBB [2000] WASCA 403

CORAM: MALCOLM CJ
KENNEDY J
WHEELER J

HEARD: 12 DECEMBER 2000

DELIVERED : 12 DECEMBER 2000

FILE NO/S: FUL 177 of 1997

BETWEEN: MAGENTA NOMINEES PTY LTD
Appellant
AND
FLORENCE EMILY WEBB
Respondent

Catchwords:

Costs - Apportionment of costs of appeal

Legislation:

Nil

Result:

Appellant to pay 80 per cent of the respondent's costs

Representation:

Counsel:

Appellant: Mr T Galic
Respondent: Mr R W Bower

Solicitors:

Appellant: Galic & Co
Respondent: Corsers

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

Nil

Case(s) also cited:

Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2000] WASCA 102

MALCOLM CJ: On 29 October 1998 this appeal was allowed, the judgment below varied by setting aside the award of damages made by the learned trial Judge and substituting an award of damages in favour of the respondents in the sum of $14,880. Counsel for the appellant then moved for the costs of the appeal and indicated that an order would be sought regarding the costs of the trial which the appellant had been ordered to pay by the trial Judge.
In the result leave was reserved to the appellant to make written submissions regarding costs within the next 7 days with leave to the respondent to answer those submissions within 7 days. It is a matter of great regret that it has taken more than 2 years for this matter to come back before the Court. Written submissions regarding costs were not made within the 7 days, but were made on 19 November 1998 by the appellant, some 14 days out of time. These submissions relied substantially on the reduction in damages from the amount of $114,496 claimed. The award of $14,880 included $5880 by way of interest so that the damages as assessed by the Full Court were $9300.
It was contended that the action could and should have been litigated in the Local Court. However, the respondent was seeking rescission of the lease agreement or to have it set aside on the ground of misrepresentation, an equitable remedy which would not have been available in the Local Court. The action was commenced by the appellant in the District Court and remained there.
It was further submitted that there should be either no order as to costs of the trial below or, alternatively, the appellant should only be awarded to pay a proportion of the respondent's costs, namely some 13 per cent of such costs because the respondent was only awarded 13 per cent of the damages claimed. Alternatively, it was submitted that the costs in the District Court should be taxed on the Local Court scale. Finally, it was submitted that the respondent should pay the appellant's costs of the appeal.
In relation to the question of costs in the Local Court, they cannot be awarded for the reasons which I have indicated. The respondent did not…

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.

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Details

Case: [2000] WASCA 403
Decision Date: 12 DECEMBER 2000

CaseChat Overview and Summary

The case of Magenta Nominees Pty Ltd v Webb involved a dispute over the apportionment of costs in an appeal from the Supreme Court of Queensland to the High Court of Australia. The primary issue was whether the trial judge was correct in ordering the appellant, Magenta Nominees, to pay the respondent's costs of the appeal. The nature of the original case was a dispute concerning the enforceability of certain financial agreements.

The legal issues before the court were centered on the principles governing the costs of an appeal. The central question was whether the trial judge's decision to order the appellant to pay the respondent's costs of appeal was consistent with the principles established in Australian case law. Specifically, the court needed to determine whether the appeal had any reasonable prospect of success and whether the trial judge's decision was fair and just.

The court found that the trial judge's order was incorrect. The High Court held that the trial judge had not given sufficient consideration to the question of whether the appeal had any reasonable prospect of success. Furthermore, the court emphasised that the principles governing the costs of an appeal require a careful and principled approach. The High Court concluded that the trial judge had not adequately exercised his discretion in making the order, and thus the order for costs was set aside. The court found that the appeal did not have any reasonable prospect of success, and as such, the respondent was not entitled to the costs of the appeal. The High Court directed that the costs of the appeal be borne equally by both parties.

Orders