SAS Financial Services Pty Ltd v TREW

[2006] WASCA 252 (S)

SAS FINANCIAL SERVICES PTY LTD & ORS -v- TREW & ANOR [2006] WASCA 252 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 252 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:85/2006	Heard:	20 NOVEMBER 2006
Coram:	WHEELER JA BUSS JA	Delivered:	24/11/06
Supplementary Delivered:	28/02/07
No of pages:	5	Judgment Part:	1 of 1
Result:	Respondents pay 85 per cent of appellants' costs of appeal, including application for leave and reserved costs, to be taxed Costs order below not varied
Category:	B
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Parties:	SAS FINANCIAL SERVICES PTY LTD (ACN 080 228 066) SAS GLOBAL LIMITED (ACN 088 999 857) PHILIP ANTHONY MEAGHER JEFFEREY JOHN TREW JOAN MAUREEN TREW
Catchwords:	Appeal Costs Turns on own facts
Legislation:	Nil
Case References:	SAS Financial Services Pty Ltd v Trew [2006] WASCA 252

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SAS FINANCIAL SERVICES PTY LTD & ORS -v- TREW & ANOR [2006] WASCA 252 (S) CORAM : WHEELER JA

BUSS JA

HEARD : 20 NOVEMBER 2006 DELIVERED : 24 NOVEMBER 2006 SUPPLEMENTARY
DECISION : 1 MARCH 2007 FILE NO/S : CACV 85 of 2006 BETWEEN : SAS FINANCIAL SERVICES PTY LTD (ACN 080 228 066)

First Appellant

SAS GLOBAL LIMITED (ACN 088 999 857)
Second Appellant

PHILIP ANTHONY MEAGHER
Third Appellant

AND

JEFFEREY JOHN TREW
First Respondent

JOAN MAUREEN TREW
Second Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : TREW & ANOR -v- SAS FINANCIAL SERVICES PTY LTD & ORS [2006] WASC 116

File No : CIV 1740 of 2005

Catchwords:

Appeal - Costs - Turns on own facts

Legislation:

Nil

Result:

Respondents pay 85 per cent of appellants' costs of appeal, including application for leave and reserved costs, to be taxed

Costs order below not varied

Category: B

(Page 3)

Representation:

Counsel:

First Appellant : Mr P G McGowan
Second Appellant : Mr P G McGowan
Third Appellant : Mr P G McGowan
First Respondent : Mr J C Curthoys
Second Respondent : Mr J C Curthoys

Solicitors:

First Appellant : Mendelawitz Morton
Second Appellant : Mendelawitz Morton
Third Appellant : Mendelawitz Morton
First Respondent : Staffa Lawyers
Second Respondent : Staffa Lawyers

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

SAS Financial Services Pty Ltd v Trew [2006] WASCA 252


(Page 4)

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Buss JA. I agree with those reasons and have nothing to add.

2 BUSS JA: On 24 November 2006 this Court granted the appellants leave to appeal from an order made by Master Sanderson on 3 July 2006, whereby, relevantly, he ordered that the respondents have leave to file a statement of claim in terms of a minute of substituted statement of claim dated 2 May 2006. The minute was the eighth attempt by the respondents to produce an acceptable pleading. This Court ordered, relevantly for present purposes, that the appellants have leave to appeal, the appeal be allowed, and pars 1 and 2 of the orders made by the learned Master on 3 July 2006 be set aside. See SAS Financial Services Pty Ltd v Trew [2006] WASCA 252.

3 By par 3 of Master Sanderson's orders, the learned Master ordered that the respondents pay the appellants' costs of the application for leave to amend, including reserved costs, to be taxed, even though the respondents had been granted leave to amend. The learned Master made that order, no doubt, because of the wasted time and expense incurred by the appellants in dealing with four different minutes of the proposed substituted statement of claim. See the learned Master's reasons at [2] - [3].

4 When this Court ordered, on 24 November 2006, amongst other things, that the appellants have leave to appeal and that the appeal be allowed, it also directed that the appellants and the respondents make written submissions as to costs. The parties agreed that this Court should determine the costs orders, on the papers. Subsequently, each of the appellants and the respondents made submissions.

5 The appellants submit, in essence, that orders should be made, as follows:

(a) paragraph 3 of Master Sanderson's orders be varied, by the addition, at the end of that paragraph, of the words "without regard to the limits otherwise imposed by item 10 of the Supreme Court Scale of Costs"; and

(b) the respondents pay the appellants' costs of the appeal, including reserved costs, to be taxed.

6 The respondents submit that par 3 of Master Sanderson's orders should not be varied. Also, they submit that there should be no order as to

(Page 5)

the costs of the appeal, alternatively the costs of the appeal should be in the cause of the action, alternatively if a costs order is made against the respondents it should reflect the fact that the appellants were not granted leave to appeal in respect of all of their complaints in relation to the substituted statement of claim.

7 In my opinion, par 3 of Master Sanderson's orders should not be varied. In other words, the learned Master's order that the respondents pay the appellants' costs of the application for leave to amend, including reserved costs, to be taxed, should not be disturbed. I am not satisfied that the appellants' success in their application for leave to appeal justifies the making of a special order in relation to the costs of the proceedings below.

8 The appellants were granted leave to appeal in relation to two categories of pleas in the substituted statement of claim which were significantly defective. Those categories affected numerous paragraphs in the pleading. Leave to appeal was not granted, however, in respect of a number of comparatively minor complaints, even though they may have had some merit under the rules of pleading. In the circumstances, I consider that justice would be done as between the parties if the respondents were ordered to pay 85 per cent of the appellants' costs of the appeal, including the application for leave and reserved costs, to be taxed. I would make an order in those terms.