MAY -v- THOMAS [2014] WASCA 176 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 176 (S)
Court:	THE COURT OF APPEAL (WA)	Published:	17/11/2014
Case No:	CACV:78/2012	Heard:	ON THE PAPERS
Coram:	MARTIN CJ BUSS JA CHANEY J	Delivered:	17/11/14
No of pages:	6	Judgment Part:	1 of 1
Result:	Costs of the first trial to be costs in the cause of the second trial. Respondent to pay 80% of appellant's taxed or agreed costs of the appeal. Respondent granted indemnity certificate pursuant to Suitors' Fund Act 1964 (WA).
Category:	B
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Parties:	MARK CHRISTOPHER MAY ANTHONY TREVOR THOMAS
Catchwords:	Costs Partial success on appeal Whether departure from general rule that successful party should recover its cost justified Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1 Suitors' Fund Act 1964 (WA)
Case References:	Amaca Pty Ltd v Hannell [2007] WASCA 158 (S) Getex Pty Ltd v Reed Business Information Pty Ltd [No 2] [2013] NSWSC 1271 May v Thomas [2014] WASCA 176 Nudrill Pty Ltd v La Rosa [2010] WASCA 158 (S) Oshlack v Richmond River Council (1998) 193 CLR 72 Suncorp Metway Insurance Ltd v Kilner [2013] QCA 69 Walker v Symonds [2014] QCA 184

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MAY -v- THOMAS [2014] WASCA 176 (S) CORAM : MARTIN CJ

BUSS JA

CHANEY J

HEARD : ON THE PAPERS DELIVERED : 17 NOVEMBER 2014 PUBLISHED : 17 NOVEMBER 2014 FILE NO/S : CACV 78 of 2012 BETWEEN : MARK CHRISTOPHER MAY

Appellant

AND

ANTHONY TREVOR THOMAS

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : FENBURY DCJ

Citation : MAY -v- THOMAS [No 2] [2012] WADC 96

File No : CIV 2394 of 2004

Catchwords:

Costs - Partial success on appeal - Whether departure from general rule that successful party should recover its cost justified - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1

Suitors' Fund Act 1964 (WA)

Result:

Costs of the first trial to be costs in the cause of the second trial.

Respondent to pay 80% of appellant's taxed or agreed costs of the appeal.
Respondent granted indemnity certificate pursuant to Suitors' Fund Act 1964 (WA).

Category: B

Representation:

Counsel:

Appellant : Mr T H Offer

Respondent : Mr T F Percy QC & Mr S D Hubbard

Solicitors:

Appellant : Vertannes Georgiou

Respondent : DLA Piper Australia

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

Amaca Pty Ltd v Hannell [2007] WASCA 158 (S)
Getex Pty Ltd v Reed Business Information Pty Ltd [No 2] [2013] NSWSC 1271
May v Thomas [2014] WASCA 176
Nudrill Pty Ltd v La Rosa [2010] WASCA 158 (S)
Oshlack v Richmond River Council (1998) 193 CLR 72
Suncorp Metway Insurance Ltd v Kilner [2013] QCA 69
Walker v Symonds [2014] QCA 184

REASONS OF THE COURT

Summary

1 For reasons previously published,1

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 May v Thomas

Details

AGLC: May v Thomas [2014] WASCA 176 (S)
Case: [2014] WASCA 176 (S)
Decision Date: 17 NOVEMBER 2014

CaseChat Overview and Summary

The appeal in May v Thomas was heard by the Supreme Court of Western Australia. The appellant, May, sought an order for costs from the respondent, Thomas, in relation to a dispute over the ownership of certain property. The case had proceeded to two trials, with the first trial resulting in a finding in favour of May. The second trial, however, found in favour of Thomas. May sought costs for the appeal, arguing that the departure from the general rule that a successful party should recover its costs was warranted given the unique circumstances of the case.

The central legal issue before the court was whether the departure from the usual practice of awarding costs to the successful party was justified. The court considered the general principle that costs should follow the event, but also recognised that this principle could be departed from in certain situations where it would be unjust to do otherwise. The court was required to weigh the merits of May's case against the need to avoid an unjust outcome.

The court found that the circumstances of the case warranted a departure from the general rule. The first trial had resulted in a finding in favour of May, and the second trial had not changed the underlying facts of the case. The court held that it was appropriate to order that the costs of the first trial be costs in the cause of the second trial. The court also found that Thomas should pay 80% of May's costs of the appeal. The court granted Thomas an indemnity certificate pursuant to the Suitors' Fund Act 1964 (WA) to ensure that he would not be left unable to pay the costs awarded against him.

The final orders of the court were that the costs of the first trial were to be costs in the cause of the second trial, that Thomas was to pay 80% of May's taxed or agreed costs of the appeal, and that Thomas was granted an indemnity certificate pursuant to the Suitors' Fund Act 1964 (WA).

Orders

Orders of the court

Costs of the first trial to be costs in the cause of the second trial.

Respondent to pay 80% of appellant's taxed or agreed costs of the appeal.

Respondent granted indemnity certificate pursuant to Suitors' Fund Act 1964 (WA).

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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