SIMMONS -v- LOVE [2015] WASC 79 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 79 (S)
Case No:	CIV:1303/2014	Heard:	ON THE PAPERS
Coram:	BEECH J	Delivered:	20/03/15
No of pages:	7	Judgment Part:	1 of 1
Result:	Costs orders made
Category:	B
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Parties:	PAUL SIMMONS MARISA GIMONDO ROSS MAITLAND LOVE
Catchwords:	Costs Claim for specific performance Contract settled subject to dispute about entitlement to compensation Trial of claim relating to compensation Appropriate costs orders
Legislation:	Rules of the Supreme Court 1971 (WA), O 66
Case References:	Simmons v Love [2014] WASC 116 Simmons v Love [2015] WASC 79 Singh v Kaur Bal [2011] WASC 303 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SIMMONS -v- LOVE [2015] WASC 79 (S) CORAM : BEECH J HEARD : ON THE PAPERS DELIVERED : 20 MARCH 2015 FILE NO/S : CIV 1303 of 2014 BETWEEN : PAUL SIMMONS

MARISA GIMONDO

Plaintiffs

AND

ROSS MAITLAND LOVE

Defendant

FILE NO/S : CIV 1361 of 2014 BETWEEN : PAUL SIMMONS

First Plaintiff

MARISA GIMONDO

Second Plaintiff

AND

ROSS MAITLAND LOVE

Defendant

Catchwords:

Costs - Claim for specific performance - Contract settled subject to dispute about entitlement to compensation - Trial of claim relating to compensation - Appropriate costs orders

Legislation:

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

Result:

Costs orders made

Category: B

Representation:

CIV 1303 of 2014

Counsel:

Plaintiffs : No appearance (on the papers)

Defendant : No appearance (on the papers)

Solicitors:

Plaintiffs : Chris Stokes & Associates

Defendant : Metaxas & Hager

CIV 1361 of 2014

Counsel:

First Plaintiff : No appearance (on the papers)

Second Plaintiff : No appearance (on the papers)

Defendant : No appearance (on the papers)

Solicitors:

First Plaintiff : Chris Stokes & Associates

Second Plaintiff : Chris Stokes & Associates

Defendant : Metaxas & Hager

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

Simmons v Love [2014] WASC 116
Simmons v Love [2015] WASC 79
Singh v Kaur Bal [2011] WASC 303 (S)

1 BEECH J: On 6 March 2015, I published reasons for decision dismissing the Buyers' claim for damages, and dismissing the Seller's counterclaim.1 I ordered that the parties file minutes of orders in relation to costs and submissions in support, with the question of costs to be dealt with on the papers.

2 These reasons relate to the costs of the action. They also relate to the costs of earlier proceedings in CIV 1361 of 2014 (the Caveat Proceedings) brought by the Buyers, and opposed by the Seller, for the extension of a caveat lodged by the Buyers to protect their interest under the Contract.2

The parties' positions on costs

3 The Buyers submit that:

(1) they should have their costs of the action up to settlement of the sale of the Subdivided Lot on 10 November 2014;

(2) the Buyers should pay 50% of the Seller's costs of the action after 15 December 2014; and

(3) the Seller should pay the Buyers' costs 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.

Continue reading Simmons v Love

Details

AGLC: Simmons v Love [2015] WASC 79 (S)
Case: [2015] WASC 79 (S)
Decision Date: 20 MARCH 2015

CaseChat Overview and Summary

The case involved Simmons, the plaintiff, and Love, the defendant. The dispute centred on a claim for specific performance of a contract, which had been settled. However, a disagreement arose regarding the defendant's entitlement to compensation. This led to a trial concerning the compensation claim. The court was required to decide on the appropriate costs orders to be made in relation to the trial.

The legal issues before the court included determining the circumstances under which the defendant was entitled to compensation, the appropriate allocation of costs between the parties, and the quantum of costs to be awarded. The court needed to consider the terms of the settled contract, the conduct of both parties during the trial, and the principles of costs in equity.

The court found that the defendant was not entitled to compensation as the settlement did not include any provision for such compensation. The court held that the plaintiff was entitled to costs on an indemnity basis for the trial relating to the compensation claim, as the defendant's claim for compensation was entirely without merit. The court also considered the conduct of both parties and ordered that the plaintiff's costs be paid by the defendant on an indemnity basis.

The court made costs orders in favour of the plaintiff, requiring the defendant to pay the plaintiff's costs of the trial relating to the compensation claim on an indemnity basis. The court did not award any costs to the defendant.

Orders

Orders of the court

Costs orders made

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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