PHILLIPS -v- PRICE [2007] WASC 54 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 54 (S)
Case No:	CIV:1825/2005	Heard:	5 FEBRUARY & 16 APRIL 2007
Coram:	HASLUCK J	Delivered:	11/03/07
Supplementary Delivered:	16/04/07
No of pages:	7	Judgment Part:	1 of 1
Result:	Defendant to pay plaintiff's costs of action No order for indemnity costs
Category:	B
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Parties:	STEPHEN PHILLIPS JOHN ERNEST PRICE
Catchwords:	Costs Costs orders after civil trial Whether plaintiff entitled to recover costs of action on an indemnity basis Grounds upon which an indemnity order for costs may be made Held that conduct of defendant does not justify an order for indemnity costs Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1(1) Supreme Court Act 1935 (WA), s 37(1)
Case References:	Phillips v Price [2007] WASC 54 Saunders v Vautier (1841) Cr & Ph 240 SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PHILLIPS -v- PRICE [2007] WASC 54 (S) CORAM : HASLUCK J HEARD : 5 FEBRUARY & 16 APRIL 2007 DELIVERED : 12 MARCH 2007 SUPPLEMENTARY
DECISION : 16 APRIL 2007 FILE NO/S : CIV 1825 of 2005 BETWEEN : STEPHEN PHILLIPS

Plaintiff

AND

JOHN ERNEST PRICE

Defendant

Catchwords:

Costs - Costs orders after civil trial - Whether plaintiff entitled to recover costs of action on an indemnity basis - Grounds upon which an indemnity order for costs may be made - Held that conduct of defendant does not justify an order for indemnity costs - Turns on own facts

Legislation:

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

Supreme Court Act 1935 (WA), s 37(1)

(Page 2)

Result:

Defendant to pay plaintiff's costs of action

No order for indemnity costs

Category: B

Representation:

Counsel:

Plaintiff : Mr P A Tottle

Defendant : No appearance

Solicitors:

Plaintiff : Tottle Partners

Defendant : No appearance

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

Phillips v Price [2007] WASC 54
Saunders v Vautier (1841) Cr & Ph 240
SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26

(Page 3)

HASLUCK J

Introduction

1 The plaintiff in these proceedings, Stephen Phillips, has called upon me to make a determination as to whether the plaintiff is entitled to recover the costs of the action.

2 This application gives rise to an issue as to whether the plaintiff is entitled to recover indemnity costs.

The nature of the proceedings

3 In these proceedings the plaintiff sought a declaration that the defendant, John Ernest Price, held certain shares in the capital of a company known as Bollway Pty Ltd on trust for the plaintiff. The plaintiff's case was that he had provided the purchase price for the shares with the result that the defendant held the same pursuant to a resulting trust or constructive trust in favour of the plaintiff.

4 On the defendant's case, the plaintiff was not entitled to call for…

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 Phillips v Price

Details

AGLC: Phillips v Price [2007] WASC 54 (S)
Case: [2007] WASC 54 (S)
Decision Date

CaseChat Overview and Summary

In the case of Phillips v Price, the plaintiff, Stephen Phillips, sought a declaration that the defendant, John Ernest Price, held certain shares in the capital of a company on trust for him. The proceedings involved a dispute over the ownership of shares in Bollway Pty Ltd, with the plaintiff asserting that he provided the purchase price for the shares and that the defendant held them on trust for him. The defendant argued that the plaintiff was not entitled to call for a transfer until the outcome of a reconstruction proposal was known. The Supreme Court of Western Australia ultimately ruled in favour of the plaintiff, holding that the defendant had no basis to refuse the initial request for a transfer. The court then turned to the issue of costs, with the plaintiff seeking an order for indemnity costs against the defendant. The court considered the principles regarding indemnity costs and the defendant's conduct but ultimately decided that the defendant's conduct did not justify an order for indemnity costs. Instead, the court ordered that the defendant pay the plaintiff's costs of the action, such costs to be taxed.

The legal issues before the court involved determining whether the defendant's conduct warranted an order for indemnity costs and the grounds upon which such an order may be made. The court considered various factors, including whether the defendant's defence was hopeless, whether false issues were raised, and whether the defendant unnecessarily prolonged the proceedings. After reviewing the evidence and the principles established in previous cases, the court concluded that the defendant's conduct did not meet the criteria for an indemnity costs order. The court found that the defendant's defence had some merit and that there was no clear evidence of deliberate prolongation of the proceedings or the raising of false issues.

The court's reasoning was based on the facts of the case and the principles established in previous decisions. The court noted that while the defendant's defence was ultimately unsuccessful, it was not entirely without merit. The court also considered the defendant's health issues and his status as an unrepresented litigant residing in another state, which may have affected his compliance with programming orders. Based on these factors, the court decided not to grant indemnity costs and instead ordered that the defendant pay the plaintiff's costs of the action, to be taxed and paid forthwith.

Orders