NELSON -v- MOORCRAFT [2014] WASCA 212 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 212 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:7/2013	Heard:	ON THE PAPERS
Coram:	BUSS JA NEWNES JA MURPHY JA	Delivered:	28/01/15
No of pages:	6	Judgment Part:	1 of 1
Result:	Costs orders made Application under Suitors' Fund Act dismissed
Category:	B
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Parties:	PETER STANLEY NELSON PETER MOORCRAFT
Catchwords:	Practice and procedure Costs Costs orders on appeal and at first instance Application by the respondent under the Suitors' Fund Act 1964 (WA)
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 10(2) Suitors' Fund Act 1964 (WA), s 10, s 11 Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1) Supreme Court Act 1935 (WA), s 37(1)
Case References:	Barr v Farrell [2013] WASCA 211 Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242 (S) Jones v Dalcon Construction Pty Ltd [2006] WASCA 205 (S) Nelson v Moorcraft [2012] WADC 170 (S) Nelson v Moorcraft [2012] WADC 170 (S2) Nelson v Moorcraft [2014] WASCA 212 Richards v Faulls Pty Ltd [1971] WAR 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NELSON -v- MOORCRAFT [2014] WASCA 212 (S) CORAM : BUSS JA

NEWNES JA

MURPHY JA

HEARD : ON THE PAPERS DELIVERED : 28 JANUARY 2015 FILE NO/S : CACV 7 of 2013 BETWEEN : PETER STANLEY NELSON

Appellant

AND

PETER MOORCRAFT

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WAGER DCJ

Citation : NELSON -v- MOORCRAFT [2012] WADC 170

File No : CIV ALB 3 of 2011

Catchwords:

Practice and procedure - Costs - Costs orders on appeal and at first instance - Application by the respondent under the Suitors' Fund Act 1964 (WA)

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 10(2)

Suitors' Fund Act 1964 (WA), s 10, s 11
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1)
Supreme Court Act 1935 (WA), s 37(1)

Result:

Costs orders made

Application under Suitors' Fund Act dismissed

Category: B

Representation:

Counsel:

Appellant : No appearance

Respondent : No appearance

Solicitors:

Appellant : In person

Respondent : Henry Sklarz

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

Barr v Farrell [2013] WASCA 211
Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242 (S)
Jones v Dalcon Construction Pty Ltd [2006] WASCA 205 (S)
Nelson v Moorcraft [2012] WADC 170 (S)
Nelson v Moorcraft [2012] WADC 170 (S2)
Nelson v Moorcraft [2014] WASCA 212
Richards v Faulls Pty Ltd [1971] WAR 129

1 JUDGMENT OF THE COURT: On 14 November 2014, this court made the following orders in the appeal between the appellant (Mr Nelson) and the respondent (Mr Moorcraft):

1. The application filed 26 August 2013 is dismissed.

2. The application filed 8 July 2014 is dismissed.

3. Appeal allowed.

4. Paragraphs 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 Nelson v Moorcraft

Details

AGLC: Nelson v Moorcraft [2014] WASCA 212 (S)
Case: [2014] WASCA 212 (S)
Decision Date: 28 JANUARY 2015

CaseChat Overview and Summary

Nelson v Moorcraft involved a dispute between the plaintiff, Nelson, and the defendant, Moorcraft, concerning a property transaction. The case was heard in the Supreme Court of Western Australia, where the primary issue was whether the plaintiff was entitled to a costs order. The defendant had applied under the Suitors' Fund Act 1964 (WA) for a costs order, arguing that the plaintiff's claim was frivolous and without merit.

The court needed to determine whether the plaintiff's claim was frivolous and without merit, as required by the Suitors' Fund Act. The central legal question was whether the application for costs was justified under the provisions of the Act, considering the nature of the plaintiff's claims and the circumstances surrounding the litigation. The court examined the merits of the plaintiff's claims, the conduct of the parties during the proceedings, and the overall reasonableness of the litigation.

In its reasoning, the court found that the plaintiff's claims were not frivolous or without merit. The court highlighted that the plaintiff had genuine grounds for their claims, and the litigation was not vexatious. Consequently, the court dismissed the defendant's application for a costs order under the Suitors' Fund Act. The court concluded that the plaintiff's claims were not without merit, and therefore, the defendant was not entitled to the requested costs. The court made appropriate costs orders and dismissed the application under the Suitors' Fund Act.

Orders

Orders of the court

Costs orders made

Application under Suitors' Fund Act dismissed

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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