MCCOURT -v- CRANSTON [2009] WASC 56 (S)

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 56 (S)
Case No:	CIV:1072/2009	Heard:	23-24 FEBRUARY & 26 MARCH 2009
Coram:	TEMPLEMAN J	Delivered:	16/03/09
Supplementary Delivered:	8/04/09
No of pages:	9	Judgment Part:	1 of 1
Result:	Plaintiffs pay defendant's and third parties' costs to be taxed if not agreed Plaintiffs and defendant each pay half of third parties' costs of this application to be taxed if not agreed
Category:	A
PDF Version

Parties:	DANIEL PATRICK REDDEN MCCOURT RUTH ELLEN MCCOURT SHARNE MARY CRANSTON ACTON REAL ESTATE PTY LTD AMANDA GRAY
Catchwords:	Costs Third party proceedings Plaintiffs unsuccessful against defendant Inevitable third parties would be joined No evidence plaintiffs impecunious Plaintiffs to pay costs of defendant and third parties Costs Third parties liable to indemnify defendant Nontaxable costs incurred by defendant Whether compensable as damages
Legislation:	Rules of the Supreme Court 1971 (WA), O 19 r 12, O 66 r 11(2)
Case References:	Allman v Daly (No 2) [1959] VR 614 Edwards v Stocks [2009] TASSC 11 Hammond & Co v Bussey (1888) 20 QBD 79 Henry & Henry v AGC Ltd [1985] WAR 137 Johnson v Ribbins [1977] 1 All ER 806 McCourt v Cranston [2009] WASC 56 Penn v Bristol & West Building Society [1997] 1 WLR 1356 Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2000] NSWSC 1100 Swisstex Finance Pty Ltd v Lamb [1993] 2 Qd R 463

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MCCOURT -v- CRANSTON [2009] WASC 56 (S) CORAM : TEMPLEMAN J HEARD : 23-24 FEBRUARY & 26 MARCH 2009 DELIVERED : 17 MARCH 2009 SUPPLEMENTARY
DECISION : 8 APRIL 2009 FILE NO/S : CIV 1072 of 2009 BETWEEN : DANIEL PATRICK REDDEN MCCOURT

RUTH ELLEN MCCOURT

Plaintiffs

AND

SHARNE MARY CRANSTON

Defendant

ACTON REAL ESTATE PTY LTD

First Third Party

AMANDA GRAY

Second Third Party

Catchwords:

Costs - Third party proceedings - Plaintiffs unsuccessful against defendant - Inevitable third parties would be joined - No evidence plaintiffs impecunious - Plaintiffs to pay costs of defendant and third parties

(Page 2)

Costs - Third parties liable to indemnify defendant - Nontaxable costs incurred by defendant - Whether compensable as damages

Legislation:

Rules of the Supreme Court 1971 (WA), O 19 r 12, O 66 r 11(2)

Result:

Plaintiffs pay defendant's and third parties' costs to be taxed if not agreed

Plaintiffs and defendant each pay half of third parties' costs of this application to be taxed if not agreed

Category: A

Representation:

Counsel:

Plaintiffs : Mr H R Robinson

Defendant : Mr M M Mony de Kerloy

First Third Party : Mr J L Sher

Second Third Party : Mr J L Sher

Solicitors:

Plaintiffs : Haydn Robinson

Defendant : Mony de Kerloy

First Third Party : DLA Phillips Fox

Second Third Party : DLA Phillips Fox

(Page 3)

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

Allman v Daly (No 2) [1959] VR 614
Edwards v Stocks [2009]…

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 McCourt v Cranston

Details

AGLC: McCourt v Cranston [2009] WASC 56 (S)
Case: [2009] WASC 56 (S)
Decision Date: 17 MARCH 2009

CaseChat Overview and Summary

The matter before the court involved a dispute between McCourt and Cranston, with McCourt having brought third-party proceedings against Cranston. The plaintiffs, McCourt, were unsuccessful in their claims against the defendant, Cranston, and the court was required to determine the costs associated with the proceedings, particularly as the third parties would inevitably be joined. The plaintiffs sought to avoid paying the costs of the defendant and third parties, arguing they were impecunious, but the court found no evidence to support this claim.

The legal issues before the court included whether the plaintiffs should bear the costs of the defendant and third parties, given their unsuccessful litigation, and whether the third parties were liable to indemnify the defendant for any costs incurred. Additionally, the court had to consider whether certain non-taxable costs incurred by the defendant were compensable as damages. The court examined the statutory provisions and case law relevant to costs in third-party proceedings and the circumstances under which costs may be awarded against a party who is unsuccessful in their litigation.

In its reasoning, the court held that the plaintiffs were liable for the costs of the defendant and third parties, as it was inevitable that third parties would be joined in the proceedings. The court rejected the plaintiffs' argument of being impecunious, finding no evidence to support it. The court also determined that the third parties were liable to indemnify the defendant for any costs incurred. Regarding the non-taxable costs, the court found that they were not compensable as damages under the circumstances. The court concluded that the plaintiffs should pay the defendant's and third parties' costs, which were to be taxed if not agreed upon, and that the plaintiffs and defendant should each pay half of the third parties' costs of the application, also to be taxed if not agreed.

Orders

Orders of the court

Plaintiffs pay defendant's and third parties' costs to be taxed if not agreed

Plaintiffs and defendant each pay half of third parties' costs of this application to be taxed if not agreed

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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