Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) [No 2]

[2008] WASCA 109 (S)

REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD -v- ESPANOL HOLDINGS PTY LTD (in liq) [No 2] [2008] WASCA 109 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 109 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:23/2007	Heard:	15 JANUARY 2008
Coram:	STEYTLER P McLURE JA PULLIN JA	Delivered:	14/05/08
Supplementary Delivered:	5/06/08
No of pages:	5	Judgment Part:	1 of 1
Result:	Orders made
Category:	B
PDF Version

Parties:	REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD ESPANOL HOLDINGS PTY LTD (in liq) (ACN 009 087 334) MARIA MICHELLE ORTIN
Catchwords:	Orders Costs Application of public interest litigation principles Turns on own facts
Legislation:	Real Estate and Business Agents Act 1978 (WA)
Case References:	Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 Hollier v Australia Maritime Safety Authority (No 2) [1988] FCA 975 Oshlack v Richmond River Council (1998) 193 CLR 72 Real Estate and Business Agency Advisory Board v Espanol Holdings Pty Ltd (in liq) [No 2] [2008] WASCA 109

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD -v- ESPANOL HOLDINGS PTY LTD (in liq) [No 2] [2008] WASCA 109 (S) CORAM : STEYTLER P

McLURE JA
PULLIN JA

HEARD : 15 JANUARY 2008 DELIVERED : 14 MAY 2008 SUPPLEMENTARY
DECISION : 5 JUNE 2008 FILE NO/S : CACV 23 of 2007 BETWEEN : REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD

Appellant

AND

ESPANOL HOLDINGS PTY LTD (in liq) (ACN 009 087 334)
First Respondent

MARIA MICHELLE ORTIN
Second Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram : HON R VIOL (SUPPLEMENTARY DEPUTY PRESIDENT)

MR R LEDGER (SENIOR SESSIONAL MEMBER)
MS E BRICE (SESSIONAL MEMBER)

Citation : ESPANOL HOLDINGS PTY LTD & ANOR and REAL ESTATE & BUSINESS AGENTS SUPERVISORY BOARD [2007] WASAT 5

File No : VR 146 of 2006

Catchwords:

Orders - Costs - Application of public interest litigation principles - Turns on own facts

Legislation:

Real Estate and Business Agents Act 1978 (WA)

Result:

Orders made

Category: B

Representation:

Counsel:

Appellant : Mr E M Corboy SC
First Respondent : Mr D H Solomon
Second Respondent : Mr D H Solomon

Solicitors:

Appellant : Tottle Partners
First Respondent : Solomon Brothers
Second Respondent : Solomon Brothers

(Page 3)

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

Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55
Hollier v Australia Maritime Safety Authority (No 2) [1988] FCA 975
Oshlack v Richmond River Council (1998) 193 CLR 72
Real Estate and Business Agency Advisory Board v Espanol Holdings Pty Ltd (in liq) [No 2] [2008] WASCA 109


(Page 4)

1 JUDGMENT OF THE COURT: These reasons relate to the orders and costs of the appeal in Real Estate and Business Agency Advisory Board v Espanol Holdings Pty Ltd (in liq) [No 2] [2008] WASCA 109. The parties agree as to the terms of the proposed orders save in relation to the costs of the appeal.

2 The respondents were unsuccessful in the appeal and on their notice of contention. However, they contend the court should not follow the ordinary rule that a successful litigant should be awarded its costs for two reasons. First, they contend that the appeal was public interest litigation sufficient to warrant the appellant being deprived of its costs, relying on Oshlack v Richmond River Council (1998) 193 CLR 72. The public interest elements were identified as the interpretation of legislation protecting the public interest, being the creation and regulation of the Fidelity Fund, and the fact that the appellant is a publicly funded body required to administer the Fund.

3 Oshlack was a case where the unsuccessful party legitimately claimed to represent the public interest rather than merely a private interest. Mr Oshlack proceeded under s 123(1) of the Environmental Planning and Assessment Act 1979 (WA) which provided that any person might bring proceedings for an order to remedy or restrain breaches of that Act. This conferral of standing on a member of the public was an important factor in the decision of the majority in Oshlack. See Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55. In contrast, Pt VIII of the Real Estate and Business Agents Act 1978 (WA) gives to persons who have suffered loss by reason of any defalcation of a licensee a statutory private right to compensation from the Fund. The litigation related to a claim to a private right of the respondents. The fact that the resolution of the issue involved the interpretation of Pt VIII of the Act is a common feature of litigation which does not justify departure from the usual rule as to costs. Hollier v Australia Maritime Safety Authority (No 2) [1988] FCA 975.

4 Secondly, the respondents claim the appellant 'elected' and exercised a 'discretion' to avail itself of a technical legal defence to block the respondents' otherwise valid claim. That is a misstatement of this court's reasons in the appeal [29].

5 We are not satisfied that the circumstances justify a departure from the ordinary rule that a successful litigant should be awarded costs. We hereby order that:

(Page 5)

(1) The appellant is granted leave to appeal.

(2) The appeal be and is hereby allowed.

(3) The notice of contention be and is hereby dismissed.

(4) The orders of the State Administrative Tribunal (SAT) made on 12 January 2007 in Espanol Holdings Pty Ltd v Real Estate and Business Agents Supervisory Board [2007] WASAT 5 (VR 146 of 2006) be and is hereby set aside and in lieu thereof it be ordered that the respondents' application to SAT be dismissed.

(5) The respondents pay the appellant's costs of the appeal, including the costs of the respondents' notice of contention and any reserved costs, to be taxed.