Nelson v Moorcraft
[2014] WASCA 212 (S)
•28 JANUARY 2015
NELSON -v- MOORCRAFT [2014] WASCA 212 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 212 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:7/2013 | ON THE PAPERS | |
| Coram: | BUSS JA NEWNES JA MURPHY JA | 28/01/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Costs orders made Application under Suitors' Fund Act dismissed | ||
| B | |||
| PDF Version |
| 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
- 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, 2, 6, 7, 8 and 9 of the trial judge's orders made on 19 December 2012 are set aside.
5. Mr Nelson's claim that Mr Moorcraft breached the Land Ownership Deed when, by his letters dated 10 November 2010 and 15 November 2010, he 'effectively evicted' Mr Nelson from the property at 141 Robinson Road, Albany, including his claim in damages for the alleged breach, is remitted to the trial judge for resolution in accordance with this court's reasons.
6. By 4.00 pm on 3 December 2014, Mr Nelson is to file and serve written submissions in relation to the costs of the appeal and the costs of the proceedings in the District Court action.
7. By 4.00 pm on 11 December 2014, Mr Moorcraft is to file and serve written submissions in relation to the costs of the appeal and the costs of the proceedings in the District Court action.
8. This court will decide upon and make orders in relation to the costs of the appeal and the costs of the proceedings in the District Court action on the basis of the written submissions that are filed and served by the parties.
2 Those orders reflected the court's reasons in Nelson v Moorcraft [2014] WASCA 212.
3 Subsequently, the parties filed written submissions in relation to the costs of the appeal and the costs of the proceedings in the District Court action.
4 On 2 May 2014, the trial judge ordered Mr Nelson to pay Mr Moorcraft's costs of the District Court action. See Nelson v Moorcraft [2012] WADC 170 (S2). See also Nelson v Moorcraft [2012] WADC 170 (S).
5 Section 37(1) of the Supreme Court Act 1935 (WA) confers a broad discretion on the court in relation to costs with full power to determine, relevantly, by whom and to what extent such costs are to be paid. This discretionary power enables the court to make orders with respect to the allowance of costs generally. See also O 66 r 1(1) of the Rules of theSupreme Court1971 (WA), which should be read together with s 37(1) of the Act.
6 By O 66 r 10(2) of the Rules of the Supreme Court, relevantly, in the case of an appeal, the costs of the proceedings giving rise to the appeal, as well as the costs of the appeal and of the proceedings connected with it, may be dealt with by the court hearing the appeal.
7 Rule 5(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that the Court of Appeal Rules must be read with the Rules of the Supreme Court.
8 Mr Nelson had substantial success in the appeal. However:
(a) Mr Nelson was not successful on some of the issues in the appeal; and
(b) his applications filed 26 August 2013 and 8 July 2014 were dismissed.
9 If the District Court action had been tried and determined in accordance with this court's reasons, Mr Nelson would have had substantial success in the District Court trial.
10 It is unnecessary to reproduce the various arguments and contentions in the written submissions filed by the parties in relation to costs. It is sufficient to note that Mr Moorcraft has applied for an indemnity certificate under s 10 of the Suitors' Fund Act 1964 (WA). See also s 11 of that Act.
11 After taking into account the successes and failures of each of the parties on particular issues in the appeal; the court's reasons for decision in the appeal; the successes and failures which each of the parties should have had on particular issues at the District Court trial if the District Court action had been tried and determined in accordance with this court's reasons; the fact that, pursuant to par 5 of this court's orders made on 14 November 2014, part of Mr Nelson's claim in the District Court action was remitted to the trial judge for resolution in accordance with this court's reasons; and the submissions of the parties on the orders that should now be made, justice would be done as between the parties if:
(a) the trial judge's order as to the costs of the District Court action were to be set aside;
(b) Mr Moorcraft were to be ordered to pay 70% of Mr Nelson's costs of the District Court action, including the costs of the counterclaim and any reserved costs, to be taxed if not agreed; and
(c) Mr Moorcraft were to be ordered to pay 70% of Mr Nelson's costs of the appeal, including any reserved costs, to be taxed if not agreed.
12 These orders are preferable to this court endeavouring to make individual orders by reference to particular issues or events at the District Court trial or in the appeal.
13 As to Mr Moorcraft's application under s 10 of the Suitors' Fund Act, this court has an unfettered discretion under s 10 but the discretion must be exercised judicially. The discretion is a discretion to grant, rather than a discretion to refuse, an indemnity certificate. The respondent must establish that there is an appropriate basis for the exercise of the court's discretion in his or her favour. The mere fact that the respondent succeeded at first instance, but lost on appeal on a question of law, is insufficient. See Richards v Faulls Pty Ltd [1971] WAR 129, 137 - 139; Jones v Dalcon Construction Pty Ltd [2006] WASCA 205 (S) [5]. A relevant consideration is whether (and, if so, to what extent) the question of law was of general importance or application or whether the question of law merely arose from the particular facts of the case. See Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242 (S) [3]; Barr v Farrell [2013] WASCA 211 [13].
14 Mr Moorcraft has not shown an appropriate basis for the exercise in his favour of the discretion under s 10. The questions of law on which Mr Nelson succeeded and Mr Moorcraft failed were not of general importance or application. They arose from the unusual facts and circumstances of the case. Mr Moorcraft's application should be dismissed.
15 Accordingly, the court will make orders as follows:
(1) The trial judge's order as to the costs of the District Court action is set aside.
(2) Mr Moorcraft is to pay 70% of Mr Nelson's costs of the District Court action, including the costs of the counterclaim and any reserved costs, to be taxed if not agreed.
(3) Mr Moorcraft is to pay 70% of Mr Nelson's costs of the appeal, including any reserved costs, to be taxed if not agreed.
(4) Mr Moorcraft's application under s 10 of the Suitors' Fund Act is dismissed.
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