RHODES-SMITH -v- NODDIES PROPERTIES PTY LTD [2013] WASC 426

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 426
Case No:	CIV:2524/2010	Heard:	14 NOVEMBER 2013
Coram:	MASTER SANDERSON	Delivered:	28/11/13
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	CLAIRE RHODES-SMITH NODDIES PROPERTIES PTY LTD as Trustee for the NODDIES UNIT TRUST (ACN 100 812 815) KAPIRIS BROS (VIC) PTY LTD (ACN 061 780 210) KAPIRIS BROS (WA) PTY LTD as Trustee for the KAPIRIS BROS (WA) UNIT TRUST (ACN 082 799 317) HARALAMBOS KAPIRIS
Catchwords:	Appeal from registrar Costs order where no trial of action Whether refusal of offer of contribution to costs was unreasonable Turns on own facts
Legislation:	Nil
Case References:	Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 Calderbank v Calderbank [1975] 3 All ER 333 CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 Re Western Australian Planning Commission; Ex parte Solomon [2010] WASCA 236 (S) Soia v Bennett [No 5] [2012] WASC 289 (S) Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) The Liberal Party of Australia (Western Australia Division) Inc v City of Gosnells [2013] WASC 267

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RHODES-SMITH -v- NODDIES PROPERTIES PTY LTD [2013] WASC 426 CORAM : MASTER SANDERSON HEARD : 14 NOVEMBER 2013 DELIVERED : 28 NOVEMBER 2013 FILE NO/S : CIV 2524 of 2010 BETWEEN : CLAIRE RHODES-SMITH

Plaintiff

AND

NODDIES PROPERTIES PTY LTD as Trustee for the NODDIES UNIT TRUST (ACN 100 812 815)

First Defendant

KAPIRIS BROS (VIC) PTY LTD (ACN 061 780 210)

Second Defendant

KAPIRIS BROS (WA) PTY LTD as Trustee for the KAPIRIS BROS (WA) UNIT TRUST (ACN 082 799 317)

Third Defendant

HARALAMBOS KAPIRIS

Fourth Defendant

Catchwords:

Appeal from registrar - Costs order where no trial of action - Whether refusal of offer of contribution to costs was unreasonable - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Plaintiff : Ms M L Coulson

First Defendant : Mr P L Harris

Second Defendant : Mr P L Harris

Third Defendant : Mr P L Harris

Fourth Defendant : Mr P L Harris

Solicitors:

Plaintiff : Coulson Legal

First Defendant : Ilberys Lawyers

Second Defendant : Ilberys Lawyers

Third Defendant : Ilberys Lawyers

Fourth Defendant : Ilberys Lawyers

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

Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Calderbank v Calderbank [1975] 3 All ER 333
CVW Group Holdings Pty Ltd v Addison [2011] WASC 267
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1
Re Western Australian Planning Commission; Ex parte Solomon [2010] WASCA 236 (S)
Soia v Bennett [No 5] [2012] WASC 289 (S)
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
The Liberal Party of…

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.

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Details

Case: [2013] WASC 426
Decision Date: 28 NOVEMBER 2013

CaseChat Overview and Summary

The matter involved an appeal by the plaintiff, Rhodes-Smith, against a decision of the Registrar of the Federal Circuit Court of Australia. The plaintiff had commenced an action against Noddies Properties Pty Ltd but subsequently abandoned the proceedings without a trial. The Registrar had ordered the plaintiff to pay the defendant's costs of the action, and the plaintiff challenged this order, arguing that the Registrar had unreasonably refused an offer to contribute to those costs.

The key issue before the court was whether the Registrar's refusal of the offer to contribute to costs was unreasonable. This involved an examination of the relevant principles governing costs orders in such circumstances, including the appropriate exercise of discretion by the Registrar and the circumstances in which a party might be required to contribute to the costs of another party.

The court found that the Registrar's decision was not unreasonable. The court held that the Registrar had appropriately exercised their discretion and that the plaintiff had not demonstrated any error in the exercise of that discretion. The court further found that the plaintiff's offer to contribute to costs was not sufficient to warrant a reduction in the costs order. The appeal was dismissed, and the original order for costs remained in place.

Orders

Orders of the court

Appeal 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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