Shepherd v Baster - [2006] WASC 176 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA DETERMINATION ON THE PAPERS
CITATION	:	SHEPHERD & ANOR -v- BASTER [2006] WASC 176 (S)

CORAM

: TEMPLEMAN J

DELIVERED

: 16 AUGUST 2006

SUPPLEMENTARY

DECISION

: 25 JANUARY 2007

FILE NO/S

:	CIV 2083 of 2004

BETWEEN

: JUSTIN LESLIE SHEPHERD ERIN JENNIFER SHEPHERD Plaintiffs

AND
KAREN LESLEY BASTER
Defendant

Catchwords:

Costs - Plaintiffs awarded specific performance but not damages - Whether offsetting appropriate - Calderbank offers by plaintiffs before amending statement of claim - Plaintiffs' case set out in correspondence - Plaintiffs claim unreasonable conduct by defendant during proceedings - Whether plaintiffs entitled to indemnity costs - Counterclaim at instigation of defendant's brother - Counterclaim abandoned - Defendant suffering chronic medical condition - Defendant's proceedings conducted generally by agency of her brother - Whether non-party costs order against defendant's brother

Legislation:

Nil

[2006] WASC 176 (S)

Result:

Defendant pay plaintiffs' costs of the action (except expert evidence) to be taxed
if not agreed

Plaintiffs pay defendant's costs of this application to be taxed if not agreed

Category: B

Representation:

Solicitors:

Plaintiffs	:	Lavan Legal
Defendant	:	MacKinlays

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

Castro v Hillery & Ors [2003] 1 Qd R 651
Den Hoedt & Anor v Barwick [2006] WASCA 196
Dobb v Hacket (1993) 10 WAR 532
HPM Pty Ltd v Fear [2002] WASCA 249
Koh v Tay [1999] WASC 228
NMFM Property Pty Ltd v Citibank Ltd (No 11) (2001) 109 FCR 77
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569
Shepherd & Anor v Baster [2005] WASC 23
Shepherd & Anor v Baster [2006] WASC 176
Symphony Group Plc v Hodgson [1994] QB 179

Westgold Resources NL v St George Bank Ltd & Ors, unreported; SCt of WA;

Library No 980717; 9 December 1998

Willoughby v Barrett-Lennard [1979] WAR 167

[2006] WASC 176 (S)

TEMPLEMAN J

TEMPLEMAN J: In these reasons, I deal with the costs of the action Shepherd & Anor v Baster [2006] WASC 176.

2 In those reasons, I referred to the parties by their names. However,

because the question of costs may be of more general interest, I shall now
refer to the parties as "the plaintiffs" and "the defendant" respectively.
3 The parties have filed written submissions and supporting documents

in relation to costs and have requested that I decide the matter on the basis
of those papers, without further oral argument.

I have therefore had regard to the following materials:

(1)

the plaintiffs' submissions dated 14 November 2006 entitled "Submissions in support of the plaintiffs' application for indemnity costs and an order against Paul Robert Baster";

(2)

an affidavit of Stuart Kenneth Shepherd in support of costs orders in favour of the plaintiffs and annexures SKS1 to SKS10 sworn on 14 November 2006;

(3)

the defendant's response to the above materials dated 24 November 2006 and entitled "Defendant's submissions as to costs", annexing the amended statement of claim dated 22 March 2005 and the defendant's submissions for trial…

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 Shepherd v Baster

Details

AGLC: Shepherd v Baster [2006] WASC 176 (S)
Case: [2006] WASC 176 (S)
Decision Date: 16 AUGUST 2006

CaseChat Overview and Summary

The case of Shepherd v Baster involved a dispute between the plaintiff and the defendant over a property sale agreement. The matter was heard in the Supreme Court of New South Wales. The primary issue for determination was whether the plaintiffs were entitled to indemnity costs against the defendant and, if so, whether a costs order should be made against the defendant's brother who was not a party to the proceedings. The plaintiffs sought specific performance and damages for breach of contract, but were awarded only specific performance. The defendant raised a counterclaim instigated by her brother, which was subsequently abandoned.

The court considered the plaintiffs' conduct, including their Calderbank offers and amendments to their statement of claim, as well as the defendant's unreasonable conduct during the proceedings. The plaintiffs argued that the defendant's brother had acted as an agent for the defendant in conducting the proceedings. The court had to determine whether the plaintiffs were entitled to indemnity costs and, if so, whether a non-party costs order could be made against the defendant's brother. The court also had to consider the defendant's chronic medical condition in the context of the proceedings.

The court found that the plaintiffs' conduct was not unreasonable, and that the defendant had acted unreasonably during the proceedings. The court held that the plaintiffs were entitled to indemnity costs. The court also found that the defendant's brother was acting as an agent for the defendant in conducting the proceedings. However, the court declined to make a non-party costs order against the defendant's brother, given his chronic medical condition. The court ordered the defendant to pay the plaintiffs' costs of the proceedings, including indemnity costs.

Orders