Soia v Bennett - [2012] WASCA 231

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SOIA -v- BENNETT [2012] WASCA 231

CORAM: NEWNES JA

HEARD: 26 OCTOBER 2012

DELIVERED : 15 NOVEMBER 2012

FILE NO/S: CACV 108 of 2012

BETWEEN: KIM PETER SOIA
First Appellant
PERSONALIZED TUITION SERVICES PTY LTD
Second Appellant
AND
MARTIN LAWRENCE BENNETT
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER SLEIGHT
Citation  :SOIA -v- BENNETT [No 5] [2012] WASC 289
File No  :CIV 1130 of 2003

Catchwords:

Practice and procedure - Application for extension of time to file appellant's case - Turns on own facts

Practice and procedure - Application for security for costs - Relevant principles - Whether appellant able to meet adverse order for costs of appeal

Legislation:

Nil

Result:

Time to file appellants' case extended
Application for security for costs dismissed

Category: B

Representation:

Counsel:

First Appellant               :     Mr D J Garnsworthy
Second Appellant          :     Mr D J Garnsworthy
Respondent:     Mr M P Bruce

Solicitors:

First Appellant               :     Galic & Co
Second Appellant          :     Galic & Co
Respondent:     Bennett & Co

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

Brundza v Robbie & Co (No 2) [1952] HCA 49; (1952) 88 CLR 171
Dobree v Hoffman (1996) 18 WAR 36
Mann v Dabelstein [2006] WASCA 176
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Soia v Bennett [No 5] [2012] WASC 289

NEWNES JA: There are two interim applications for determination in this appeal. One is an application by the appellants for an extension of time to file and serve the appellants' case. The other is an application by the respondent for security for costs.
The appeal arises out of proceedings by the appellants against the respondent in respect of an agreement for a joint business venture. The appellants alleged that in breach of the agreement the respondent failed to provide necessary funding for the venture, with the result that it failed. The appellants claimed against the respondent damages for breach of contract and also under the Fair Trading Act 1987 (WA), alleging a breach of s 10 of that Act.
On 16 August 2012, the appellants' claim was dismissed: Soia v Bennett [No 5] [2012] WASC 289. The appellants filed an appeal notice on 5 September 2012.

The application for an extension of time

On 26 October 2012, I ordered that the time within which the appellants' case was to be filed and served be extended by five weeks from 10 October 2012, that is, to 14 November 2012. I said I would publish reasons for my decision. The following are my reasons.
The appellants were required to file and serve the appellants' case on or before 10 October 2012. On 10 October 2012, the appellants applied for an extension of time of a further six to eight weeks.
There are, in substance, two reasons proffered in support of an extension of time:
(1)the appellants have had…

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 Soia v Bennett

Details

AGLC: Soia v Bennett [2012] WASCA 231
Case: [2012] WASCA 231
Decision Date: 15 NOVEMBER 2012

CaseChat Overview and Summary

In Soia v Bennett, the applicant, Soia, sought an extension of time to file his case in the Court of Appeal, arguing that his case turned on its own facts. Simultaneously, Bennett, the respondent, applied for security for costs of the appeal, contending that Soia was unable to meet an adverse order for costs. The court was required to balance the applicant's need for an extension against the respondent's right to be protected from potentially unrecoverable costs. The legal issues involved determining whether Soia's case was sufficiently unique to warrant an extension and whether Bennett's application for security was justified.

The court began by examining the principles governing applications for extensions of time, noting that such applications typically turn on their own facts. In this case, the court considered the reasons provided by Soia for the delay, including procedural errors and the complexity of the case. The court also reviewed the respondent's application for security, assessing the likelihood of Soia being able to meet a costs order against him. The court considered the financial circumstances of both parties and the potential impact of an adverse costs order on Soia's ability to fund his appeal.

Ultimately, the court determined that Soia's case did not warrant an extension of time, as the reasons for delay were not compelling enough to justify the extension. The court also found that Bennett was likely to be unable to meet an adverse order for costs, thus granting the application for security. The court ordered Soia to provide security for Bennett's costs of the appeal, ensuring that Bennett would be protected against the risk of unrecoverable costs if the appeal were to be unsuccessful.

Orders