Smith v Bank of Western Australia Limited

[2010] WASCA 15 (S)

SMITH -v- BANK OF WESTERN AUSTRALIA LIMITED [2010] WASCA 15 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASCA 15 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:62/2009	Heard:	10 NOVEMBER 2009 & 5 MAY 2010
Coram:	OWEN JA PULLIN JA NEWNES JA	Delivered:	8/02/10
Supplementary Delivered:	5/05/10
No of pages:	4	Judgment Part:	1 of 1
Result:	Appellant to pay the respondent's costs of the appeal
Category:	B
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Parties:	JAMES GARNETT SMITH ELIZABETH ANNE SMITH BANK OF WESTERN AUSTRALIA LIMITED MALCOLM MCCUSKER QC
Catchwords:	Costs Appellant unsuccessful on appeal Whether costs should follow the event Discretion as to costs Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SMITH -v- BANK OF WESTERN AUSTRALIA LIMITED [2010] WASCA 15 (S) CORAM : OWEN JA

PULLIN JA
NEWNES JA

HEARD : 10 NOVEMBER 2009 & 5 MAY 2010 DELIVERED : 8 FEBRUARY 2010 SUPPLEMENTARY
DECISION : 5 MAY 2010 FILE NO/S : CACV 62 of 2009 BETWEEN : JAMES GARNETT SMITH

ELIZABETH ANNE SMITH
Appellants

AND

BANK OF WESTERN AUSTRALIA LIMITED
Respondent

MALCOLM MCCUSKER QC
Third Party

(Page 2)

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MARTIN CJ

Citation : SMITH -v- COMMISSIONERS OF THE RURAL AND INDUSTRIES BANK OF WESTERN AUSTRALIA [2009] WASC 100

File No : CIV 2130 of 1982

Catchwords:

Costs - Appellant unsuccessful on appeal - Whether costs should follow the event - Discretion as to costs - Turns on own facts

Legislation:

Nil

Result:

Appellant to pay the respondent's costs of the appeal

Category: B

Representation:

Counsel:

First-named Appellant : In person (Mrs E A Smith)
Second-named Appellant : In person
Respondent : Ms R J Lee
Third Party : Mr M N Solomon

Solicitors:

First-named Appellant : In person
Second-named Appellant : In person
Respondent : Blake Dawson
Third Party : Jackson McDonald

(Page 3)

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

Nil

(Page 4)

1 OWEN JA: When the reasons for decision were handed down on 8 February 2010 an order was made that the appeal be dismissed but the question of costs be stood over and that is the matter that has been raised this morning.

2 The general rule is that costs follow the event. But there is a broad discretion as to costs and that discretion can be exercised in a proper case to depart from the general rule. But in my view nothing has been demonstrated in either the written submissions which the appellants have filed or in the oral submissions that Mrs Smith has made this morning which would justify a departure from the general rule insofar as concerns costs as between the appellants and the respondent bank.

3 For example, pars 3 and 4 of the appellant's written submissions relate to the question of the documents which was aired and ruled on in the substance of the appeal. Paragraph 9 is to similar effect. In par 4 through to par 8, the appellants raise issues (raised again this morning in oral submissions) as to the impact of actions taken by the intervener. But it seems to me that they are properly within the discrete action which is CIV 1230 of 1995.

4 For those reasons I can see no reason which would justify the court departing from the general rule. I would propose and order that as between the appellant and the respondent bank, that the appellant pay the respondent bank's costs of the appeal to be taxed if not agreed. As between the intervener and the respondent bank, no costs orders are sought. As between the appellants and the intervener, an oral application has been made that the intervener pay the appellants' costs. I can see no reason that would justify such an order being made in this appeal, that is, in the appeal from the decision in CIV 2130 of 1982.

5 So the orders that I would propose are simply that the appellants pay the respondent's costs of the appeal to be taxed if not agreed and, secondly, that there be no order as to costs as between the intervener and the respondent bank.

6 PULLIN JA: I agree with all that Owen JA has said and the orders that he proposes.

7 NEWNES JA: I agree with Owen JA.