Souter v Condor Developments Pty Ltd
[2012] WASCA 227 (S)
•28 NOVEMBER 2012
SOUTER -v- CONDOR DEVELOPMENTS PTY LTD [2012] WASCA 227 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 227 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:14/2012 | ON THE PAPERS | |
| Coram: | BUSS JA NEWNES JA MURPHY JA | 28/11/12 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Respondent to pay appellant's costs of appeal | ||
| B | |||
| PDF Version |
| Parties: | CALLAN GEORGE SOUTER CONDOR DEVELOPMENTS PTY LTD |
Catchwords: | Costs Appellant successful in smaller amount than claimed No apportionment of costs |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SOUTER -v- CONDOR DEVELOPMENTS PTY LTD [2012] WASCA 227 (S) CORAM : BUSS JA
- NEWNES JA
MURPHY JA
- Appellant
AND
CONDOR DEVELOPMENTS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
Citation : SOUTER -v- CONDOR DEVELOPMENTS PTY LTD [2011] WADC 212
File No : CIV 891 of 2010
(Page 2)
Catchwords:
Costs - Appellant successful in smaller amount than claimed - No apportionment of costs
Legislation:
Nil
Result:
Respondent to pay appellant's costs of appeal
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : Solomon Brothers
Respondent : Park Linfoot Legal Solutions
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 JUDGMENT OF THE COURT: On 9 November 2012, we allowed an appeal against a decision of O'Neal DCJ, who had decided there should be no order as to the costs of the trial and that the appellant (plaintiff) was not entitled to interest on the damages of $72,000 which he was awarded by his Honour. We found that the appellant was entitled to an order for half of his costs of the action, having regard to the extent of his success on the issues he advanced in support of his claim, and to interest on the judgment sum from the end of the trial, rather than from the date of the respondent's breach of the contract as the appellant sought.
2 When judgment was delivered the respondent sought an opportunity to make submissions on the costs of the appeal. Accordingly, directions were given for the filing of written submissions and it was ordered that the question of costs be decided on the papers. Those written submissions were subsequently filed.
3 It was submitted by the respondent that there should be no order as to the costs of the appeal or alternatively that the appellant is entitled to only a portion of his costs. That, it was argued, was because, in the result, the appellant was successful to the extent of only about half the amount claimed by way of costs and interest respectively.
4 On the respondent's cross-appeal, the respondent says that no steps were taken in the cross-appeal beyond the filing by the respondent of a notice of intention to appear on the appeal, on which it ticked the box indicating that it intended to cross-appeal. That notice was filed on 7 March 2012. Nothing further occurred in the cross-appeal and, on 18 May 2012, the respondent's solicitors wrote to both the court and the appellant's solicitors to say that the respondent was not proceeding with the cross-appeal. No grounds of cross-appeal were ever filed or served.
5 The appellant's position is that while he recovered less than he sought, he was successful in respect of both issues on the appeal. All of the matters raised in relation to the costs of trial were necessary in order for this court to determine the appropriate portion of costs to which the appellant was entitled. There was, therefore, nothing, by way of wasted costs. On interest, once the question of whether interest should run from trial was raised by the court, the appellant did not press for interest from the breach. Again, there were no wasted costs. The appellant should therefore recover its costs of the appeal.
6 The relevant authorities on costs have been canvassed in the primary judgment and it is unnecessary to repeat them. While it is the case that on
(Page 4)
- the appeal the appellant recovered only something in the order of half the amounts he sought, the respondent resisted the entitlement of the appellant to any costs or interest at all. Had the appellant pitched his claim on the appeal at the level at which he was ultimately successful, it would still have been necessary to canvass much of the same material and it is difficult to see how there would have been any significant saving in costs.
7 This is not a case where there should be an apportionment of costs. The appropriate order is that the respondent pay the appellant's costs of the appeal to be taxed. As the cross-appeal never got out of the starting blocks, there should be no order in respect of the costs of the cross-appeal.
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