NELSON -v- MOORCRAFT [2015] WASCA 19

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 19
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:81/2014	Heard:	28 JANUARY 2015
Coram:	BUSS JA NEWNES JA	Delivered:	28/01/15
No of pages:	5	Judgment Part:	1 of 1
Result:	Application dismissed Costs order made
Category:	B
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Parties:	PETER NELSON PETER MOORCRAFT
Catchwords:	Practice and procedure Costs Appellant discontinued appeal Appellant applied for costs
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 59(4)
Case References:	Nelson v Moorcraft [2012] WADC 170 Nelson v Moorcraft [2012] WADC 170 (S) Nelson v Moorcraft [2012] WADC 170 (S2) Nelson v Moorcraft [2014] WASCA 212 Nelson v Moorcraft [2014] WASCA 212 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NELSON -v- MOORCRAFT [2015] WASCA 19 CORAM : BUSS JA

NEWNES JA

HEARD : 28 JANUARY 2015 DELIVERED : 28 JANUARY 2015 FILE NO/S : CACV 81 of 2014 BETWEEN : PETER 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 (S)

File No : CIV ALB 3 of 2011

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WAGER DCJ

Citation : NELSON -v- MOORCRAFT [2012] WADC 170 (S2)

File No : CIV ALB 3 of 2011

Catchwords:

Practice and procedure - Costs - Appellant discontinued appeal - Appellant applied for costs

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 59(4)

Result:

Application dismissed

Costs order made

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr H Sklarz

Solicitors:

Appellant : In person

Respondent : Henry Sklarz

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

Nelson v Moorcraft [2012] WADC 170
Nelson v Moorcraft [2012] WADC 170 (S)
Nelson v Moorcraft [2012] WADC 170 (S2)
Nelson v Moorcraft [2014] WASCA 212
Nelson v Moorcraft [2014] WASCA 212 (S)

1 JUDGMENT OF THE COURT: On 11 December 2012, after a trial in the District Court, Wager DCJ dismissed the appellant's (Mr Nelson's) claim against the respondent (Mr Moorcraft) and allowed Mr Moorcraft's counterclaim against Mr Nelson. See Nelson v Moorcraft [2012] WADC 170.

2 On 19 December 2012, her Honour made numerous orders pursuant to her reasons for decision. Paragraph 9 of those orders stated in effect that the costs of the District Court action were reserved and to be determined at a later date.

3 On 24 January 2013, Mr Nelson filed an appeal notice, CACV 7 of 2013, in which he appealed to this court against the primary judge's judgment.

4 On 16 April 2014, appeal CACV 7 of 2013 was heard by Buss, Newnes and Murphy JJA. Judgment in the appeal was reserved at the conclusion of the hearing.

5 On 14 November 2014, Mr Nelson's appeal in CACV 7 of 2013 was allowed. See Nelson v Moorcraft [2014] WASCA 212.

6 In the meantime, on 2…

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 [2015] WASCA 19
Case: [2015] WASCA 19
Decision Date: 28 JANUARY 2015

CaseChat Overview and Summary

In the case of Nelson v Moorcraft, the dispute involved the appellant, Nelson, who had discontinued an appeal against the respondent, Moorcraft. Nelson applied for an order that Moorcraft pay the costs of the appeal. The case was heard by the court of appeal. The central legal issue was whether the appellant was entitled to an order for costs after discontinuing the appeal. The court examined the relevant principles governing costs in such circumstances.

The court considered the established legal principles which dictate that an appellant who discontinues an appeal is generally not entitled to an order for costs unless there are exceptional circumstances. The court noted that the appellant had discontinued the appeal without any apparent justification or significant progress. The court found that the discontinuance did not meet the threshold for exceptional circumstances and that the usual rule applied, whereby the appellant was not entitled to costs.

Given the findings, the court dismissed the appellant's application for costs. The court also made an order that the respondent be paid the costs of the appeal, reflecting the usual outcome in such cases. This decision underscores the principle that discontinuing an appeal without a valid reason does not entitle the appellant to costs unless there are exceptional circumstances.

Orders

Orders of the court

Application dismissed

Costs order made

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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