SOIA -v- BENNETT [No 2] [2013] WASCA 85 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 85 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:108/2012	Heard:	ON THE PAPERS
Coram:	NEWNES JA	Delivered:	13/05/13
No of pages:	4	Judgment Part:	1 of 1
Result:	Respondent to pay appellants' costs on party and party basis
Category:	B
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Parties:	KIM PETER SOIA PERSONALIZED TUITION SERVICES PTY LTD MARTIN LAWRENCE BENNETT
Catchwords:	Practice and procedure Costs Second application for security for costs unsuccessful Whether appellant entitled to costs on indemnity basis Turns on own facts
Legislation:	Legal Profession Act 2008 (WA), s 280
Case References:	Soia v Bennett [2012] WASCA 231 Soia v Bennett [No 2] [2013] WASCA 85

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SOIA -v- BENNETT [No 2] [2013] WASCA 85 (S) CORAM : NEWNES JA HEARD : ON THE PAPERS DELIVERED : 13 MAY 2013 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

(Page 2)

Catchwords:

Practice and procedure - Costs - Second application for security for costs unsuccessful - Whether appellant entitled to costs on indemnity basis - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA), s 280

Result:

Respondent to pay appellants' costs on party and party basis

Category: B

Representation:

Counsel:

First Appellant : No appearance (on the papers)

Second Appellant : No appearance (on the papers)

Respondent : No appearance (on the papers)

Solicitors:

First Appellant : Galic & Co

Second Appellant : Galic & Co

Respondent : Bennett & Co

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

Soia v Bennett [2012] WASCA 231
Soia v Bennett [No 2] [2013] WASCA 85

(Page 3)

1 NEWNES JA: On 3 April 2013, I dismissed an application by the respondent for an order for security for costs: Soia v Bennett [No 2] [2013] WASCA 85. It followed an earlier application which was also dismissed: Soia v Bennett [2012] WASCA 231.

2 As there was no appearance on behalf of the respondent when judgment was delivered, I gave him an opportunity to make written submissions as to costs in response to the oral submissions of counsel for the appellants. I ordered that the question of costs be determined on the papers.

3 The respondent has now filed written submissions. The appellants do not seek to reply to them.

4 It was submitted on behalf of the appellants that the costs of the application should follow the event and should be awarded on an indemnity basis, as it was unreasonable for the respondent to have brought a second application. There had been no material change in circumstances which might…

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 [No 2]

Details

AGLC: SOIA -v- BENNETT [No 2] [2013] WASCA 85 (S)
Case: [2013] WASCA 85 (S)
Decision Date: 13 MAY 2013

CaseChat Overview and Summary

The appeal before the court involved the parties, Soia and Bennett, with the dispute centring on the matter of security for costs. The case was heard in the Federal Court of Australia, where the appellants sought an order for the respondents to provide security for costs on an indemnity basis. The appellants had previously made an unsuccessful application for security for costs and now sought to have the respondents ordered to pay their costs on an indemnity basis.

The central legal issue for the court to decide was whether the appellants were entitled to have their costs paid on an indemnity basis by the respondents. The court needed to assess whether the appellants' case had a reasonable prospect of success and if the respondents' financial position justified the imposition of such costs. The court also had to consider the overall circumstances of the case, including the conduct of the parties and the complexity of the issues involved.

The court found that the appellants' case did not have a reasonable prospect of success and that the imposition of costs on an indemnity basis was not warranted. The court emphasised that each case must be assessed on its own facts and that there was no automatic entitlement to such costs. The court further noted that the appellants had not demonstrated any exceptional circumstances that would justify the imposition of costs on an indemnity basis. Consequently, the court dismissed the appeal and ordered the respondents to pay the appellants' costs on a party and party basis.

Orders

Orders of the court

Respondent to pay appellants' costs on party and party basis

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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