Moyle v Alexander Frans Henri Quarles De Quarles as executor of the estate of Leslie Moyle [No 2] - [2025] WASC 62

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MOYLE -v- ALEXANDER FRANS HENRI QUARLES DE QUARLES as executor of the estate of LESLIE MOYLE [No 2] [2025] WASC 62
CORAM:   LUNDBERG J
HEARD:   ON THE PAPERS
DELIVERED          :   6 MARCH 2025
FILE NO/S:   CIV 1770 of 2016
(Consolidated with CIV 1279 of 2022)

BETWEEN: ALAN LESLIE MOYLE
Plaintiff
AND
ALEXANDER FRANS HENRI QUARLES DE QUARLES as executor of the estate of LESLIE MOYLE
First Defendant
CHERIE PATRICIA CAMPBELL in her own capacity and as trustee for THE TESTAMENTARY TRUST CREATED IN THE WILL OF THE LATE LESLIE MOYLE FOR THE BENEFIT OF JOANNE MARGARET CAMPBELL
Second Defendant

FILE NO/S: CIV 2197 of 2022
BETWEEN: MOYLE HOLDINGS PTY LTD
Plaintiff
AND
ALEXANDER FRANS HENRI QUARLES DE QUARLES
First Defendant
QUARLES PTY LTD
Second Defendant

Catchwords:

Costs - Application by first defendant in both sets of proceedings to have matters heard together - Application originally heard in January 2024 and adjourned by the Court to permit further evidence to be filed - Application renewed by first defendant in January 2025 - Plaintiff consented to orders, having previously opposed - Whether first defendant the successful party - Whether any reason successful party should not be entitled to his costs of the Application - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1
Supreme Court Act 1935 (WA), s 37

Result:

The plaintiff will be ordered in each proceeding to pay the first defendant's costs of the application.

Category: B

Representation:

CIV 1770 of 2016

(Consolidated with CIV 1279 of 2022)

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Croftbridge
First Defendant	:	Arns & Associates
Second Defendant	:	Mossensons

CIV 2197 of 2022

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Croftbridge
First Defendant	:	Arns & Associates
Second Defendant	:	Barry Nilsson Lawyers (WA)

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

Moyle v Quarles as executor of the estate of Leslie Moyle [2024] WASC 17
Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 (S)
Sodhi v Whitby Land Company Pty Ltd [2024] WASC 437 (S)

LUNDBERG J:

The present reasons relate to the costs of the application filed by the first defendant in both proceedings (Mr Quarles) seeking orders that the two sets of proceedings be heard together at trial (Application).
Mr Quarles is the first defendant named in both sets of proceedings, being:
(a)proceeding CIV 1770 of 2016, which has been consolidated with action CIV 1279 of 2022 (the Estate Proceedings); and
(b) action CIV 2197 of 2022 (the Company Proceedings).
The Application was initially opposed by the plaintiff in each proceeding (being Mr Alan Moyle and Moyle Holdings). I will collectively refer to these parties as the plaintiff for convenience.
The background to these two sets of proceedings is conveniently set out in my earlier reasons delivered on 23 January 2024: Moyle v Quarles as executor of the estate of Leslie Moyle.[1] I will refer to those reasons as the Primary Reasons.
[1] Moyle v Quarles as executor of the estate of Leslie Moyle [2024] WASC 17, at [1] – [6] and [17] – [27] in particular.
I first heard the Application on 23 January 2024 and delivered reasons on that date. As explained in those reasons, while I could see the benefits inherent in the Application, I considered, on balance, that that was a decision which should wait until the Court was seized of further information to enable it to make a more confident assessment of those benefits, relative to the risks and other concerns which the plaintiff had emphasised.
I accordingly ordered that the Application be adjourned sine die, not that it be dismissed.
The matters were case managed during the course of 2024, with further pleadings and evidence being filed, and the Application was then renewed by Mr Quarles at the back end of 2024. The Application was thereafter set down for a further hearing on 4 February 2025.
For the purposes of the further hearing of the Application, the first defendant filed his submissions on 21 January 2025. Prior to the hearing on 4 February 2025, and before the plaintiff had filed his submissions, the parties filed a minute of consent orders agreeing that the proceedings should be heard together, a position with which I concurred. The joint trial of the matters will be set down for dates in September 2025.
Programming directions were then made to permit the parties to file brief submissions as to the costs of the Application, with the issue to be determined on the papers.[2]
[2] Plaintiff's submissions as to costs dated 7 February 2025 (PS) and the first defendant's submissions as to costs dated 4 February 2025 (DS).
In support of his position on costs, Mr Quarles emphasises that the plaintiff had, until January 2025, resolutely opposed the Application and that the plaintiff has now consented to the orders sought by the first defendant for a joint hearing of the two sets of proceedings. Mr Quarles invokes the general rule that costs should follow the event.
Mr Quarles submits that there is a high degree of overlap between the lay and expert evidence now filed in the two proceedings, and this overlap was either known, or should have been anticipated, by the plaintiff from the outset. Mr Quarles says that the position taken by the plaintiff in his submissions opposing the Application has not been borne out by subsequent events, most or all of which were either known to, or should have been anticipated by, the plaintiff.
Further, Mr Quarles submits that the plaintiff should have re-assessed his position well before the first defendant's written outline of submissions dated 21 January 2025 was filed and served.
In contrast, the plaintiff submits that the appropriate costs disposition is that there be no order as to the costs of the Application. The plaintiff says that Mr Quarles brought the Application prematurely such that the Court was unable to determine the application in favour of a joint trial at the hearing in January 2024.
Further, the plaintiff submits, correctly, that Mr Quarles was seeking to depart from the usual course that each proceeding would be heard separately. The plaintiff says it was not unreasonable or inappropriate for each plaintiff to insist that each proceeding be heard separately.
Having regard to the submissions filed by the parties, which I have only briefly summarised above, I now turn to outline the applicable principles which guide the determination of costs issues in this Court,[3] before then turning to explain my reasoning for disposing of the matter.
[3] The summary of these orthodox principles is drawn from my prior decision in Sodhi v Whitby Land Company Pty Ltd [2024] WASC 437 (S), among other authorities.
The Court has a wide discretion to award costs, pursuant to the power in s 37 of the Supreme Court Act 1935 (WA). The discretion regarding costs has been described as 'absolute, unconfined or unfettered although a discretion that must be exercised judicially, not arbitrarily or capriciously, or on grounds unconnected with the litigation'.[4]
[4] Frigger v Lean [2012] WASCA 66 [53] (Allanson J, Newnes and Murphy JJA).
Several general rules as to costs are described in O 66 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC). The first rule, in rule 1(1), states that 'the Court will generally order that the successful party to any action or matter recover his costs', which is subject to any express provisions in any statute or in the Rules, and of course does not limit the Court's general discretion. This is typically the starting point for most analyses of costs outcomes.[5]
[5] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [49] (Murphy, Mitchell and Pritchard JJA) (Strzelecki Holdings).
Order 66 rule 1 RSC provides:
1. General rules as to costs
(1) Subject to the express provisions of any statute and of these rules the costs of and incidental to all proceedings including the administration of estates and trusts shall be in the discretion of the Court but, without limiting the general discretion conferred on the Court by the Act, and subject to this Order, the Court will generally order that the successful party to any action or matter recover his costs.
(2) If the Court is of opinion that the conduct of a party either before or after the commencement of the litigation or that a claim by a party for an unreasonably excessive amount has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs wholly or in part, and may further order him to pay the costs of an unsuccessful party either wholly or in part.
(3) Where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs the Court may order such party to pay the costs of such issue or issues.
The rationale for the general rule is that where a party has unjustifiably brought another party before the court, that party should be liable to compensate the other in costs. It is therefore incumbent on an unsuccessful party to satisfy the court that there are good reasons it should not pay the successful party's costs.
In Strzelecki Holdings, the Court of Appeal observed:
[50] What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case. The Court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or to the failure of that party on one or more specific issues. The exercise of the discretion in that way is recognised by a number of rules…, together with the practice of the Court, and authority. So, for example, if the Court is of the opinion that the conduct of a successful party - either before or after the commencement of the litigation - has resulted in costs being unnecessarily or unreasonably incurred, the Court may deprive that party of costs, either wholly or in part, and it may further order that party to pay the costs of an unsuccessful party, either wholly or in part. In the present case, Strzelecki did not contend that the issues raised by the Jorgensens, and on which they were unsuccessful, were raised unreasonably or improperly.
[51] Under O 66 r 1(3) RSC, where a party, though generally successful in an action, has, by the introduction of some issue or issues on which it has failed, increased the costs, the Court may order such party to pay the costs of such issue or issues. It is well-recognised that an order that a successful party recover only a portion of its costs, where it has not been wholly successful, should not be made as a matter of course, for at least two reasons. First, it is often the case that a successful party will not succeed on every issue raised. Secondly, to attempt, in every case, an analysis of which party was successful on which issue would add uncertainty and complexity to the outcome of litigation, and add to the time and cost of costs arguments. Consequently, the power to apportion costs in this way should only be exercised where there are discrete and severable issues on which the generally successful party failed, and which added to the cost of the proceedings in a significant and readily discernible way. Furthermore, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if, by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case.
[52] Where the Court decides, in the exercise of its discretion, to modify the usual costs orders to reflect the limited success of the successful party, that power will be exercised broadly, and as a matter of impression, and without any attempt at mathematical precision (which is likely to prove illusory in any event). That approach reflects the fact that it may be difficult to separate the factual and evidentiary substratum of different issues, the fact that some issues are more important than others, and the fact that some issues are subsidiary to others. (footnotes omitted)
Further, the Court has often emphasised that it is 'unwise to seek to lay down hard and fast rules in considering the application of a court's general discretion for costs orders'.[6]
[6] Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 (S) [10] (Kenneth Martin J) (Ridgepoint Corporation).
In assessing the parties' respective submissions, it is convenient to first set out the primary conclusions I reached when the Application was first heard, in January 2024. In particular, I concluded that:[7]
(a)there was a high degree of commonality of interest between the two proceedings and a commonality of legal representation (although not an identicality of parties) (at [30] of the Primary Reasons);
(b)Mr Alan Moyle had sworn an affidavit deposing that the nature of the allegations in both proceedings was 'broadly similar' (at [32] of the Primary Reasons);
(c)the disputes arose out of the same course of conduct, and although the precise factual and legal issues were not identical, had some broad similarities (at [37] of the Primary Reasons);
(d) a combined trial would be of shorter length, the costs to both parties would be less, the factual witnesses would largely be the same, the plaintiff would retain the one expert, and the documentary material would be quite similar (at [38] to [40] of the Primary Reasons);
(e) there was a low risk of unfairness to the plaintiff (at [42] of the Primary Reasons);
(f) there was a risk of inconsistent findings if two trials were required (at [44] of the Primary Reasons);
(g) the degree of overlap between the different factual issues in the two proceedings was difficult to gauge as at the time of the first hearing of the Application (at [50] of the Primary Reasons); and
(h) the Court could see the benefits inherent in the first defendant's application, but that the application should be adjourned pending further information (comprising the filing of witness outlines and expert evidence) to enable the Court to make a more confident assessment of those benefits relative to the risks and other concerns emphasised by the plaintiff (at [55] of the Primary Reasons).
[7] Drawing from the summary at DS [3].
These conclusions are highly relevant to the assessment of the costs orders which should now be made in respect of the Application. In these circumstances, I consider the Application itself was reasonably brought when it was first initiated by Mr Quarles. As appears from the Primary Reasons, I could certainly see the benefits which would arise in the event the Application was granted.
Although I concluded the issue should be adjourned until further materials were filed, that does not carry with it any implicit criticism of the Application or the decision to have filed it.
Rather, I was mindful of the need to proceed cautiously before taking the step of ordering that the two sets of proceedings be heard at one trial, given the need for the Court to be satisfied that such a course would be unlikely to result in unfairness to any party, or prejudice a party's ability to conduct their case.
As matters have transpired, the plaintiff in each proceeding has now consented to the proposed orders having previously resisted the Application. The first defendant, Mr Quarles, has thus been successful on the Application, albeit by way of consent orders rather than a Court-ordered outcome. Nonetheless, the intended result of the Application has been achieved and I would assess the first defendant as the successful party in the circumstances. Ordinarily, in accordance with the principles outlined above, Mr Quarles should be entitled to the costs of the Application.
So far as is apparent to the Court, the course of events in the proceedings which have transpired since January 2024, when the Application was adjourned, do not detract from my earlier assessment as to the reasonableness of the Application.
Indeed, I generally accept the submission advanced on behalf of Mr Quarles that there was nothing surprising or unexpected in the outlines of evidence which were filed thereafter. I also accept it is significant, as the first defendant has observed, that the plaintiff briefed his expert in the Estate Proceedings in late February 2024, which was not long after the hearing of the Application itself.
Ultimately, I consider the plaintiff has failed to demonstrate any good reason to order that the plaintiff should not pay the successful party's costs of the Application. In my view, the appropriate order to make is that the first defendant should be entitled to the costs of the Application, to be assessed if not agreed.
The first defendant's solicitors should, within 7 days, file in each proceeding a minute of orders setting out the precise form of the costs orders to give effect to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to the Honourable Justice Lundberg
6 MARCH 2025