SOUTER -v- CONDOR DEVELOPMENTS PTY LTD [2012] WASCA 227 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 227 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:14/2012	Heard:	ON THE PAPERS
Coram:	BUSS JA NEWNES JA MURPHY JA	Delivered:	28/11/12
No of pages:	4	Judgment Part:	1 of 1
Result:	Respondent to pay appellant's costs of appeal
Category:	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

HEARD : ON THE PAPERS DELIVERED : 28 NOVEMBER 2012 FILE NO/S : CACV 14 of 2012 BETWEEN : CALLAN GEORGE SOUTER

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…

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 Souter v Condor Developments Pty Ltd

Details

AGLC: Souter v Condor Developments Pty Ltd [2012] WASCA 227 (S)
Case: [2012] WASCA 227 (S)
Decision Date: 28 NOVEMBER 2012

CaseChat Overview and Summary

In the matter of Souter v Condor Developments Pty Ltd, the Federal Court of Australia was tasked with resolving a dispute concerning costs incurred in an appeal. The appellant, Souter, sought to recover costs from the respondent, Condor Developments Pty Ltd, after prevailing in the appeal but only to a limited extent. The primary legal issue before the court was whether, given that the appellant's success was limited, the costs incurred should be apportioned between the parties or whether the appellant was entitled to full recovery of their costs.

The court held that where an appellant is successful in an appeal but only to a limited extent, the general rule is that the respondent should pay the appellant's costs of the appeal. The court emphasised that the apportionment of costs is not mandated unless the appellant's success was significantly less than the amount claimed, which was not the case here. Consequently, the court ruled that the appellant was entitled to recover the full costs of the appeal from the respondent. This decision underscores the principle that a party who achieves any measure of success in an appeal is generally entitled to recover their costs from the losing party, without the need for an apportionment of those costs.

As a result of the court's ruling, the respondent, Condor Developments Pty Ltd, was ordered to pay the appellant's costs of the appeal. This outcome reflects the court's adherence to the principle that success in an appeal, even if partial, entitles the successful party to recover their costs from the losing party in full.

Orders

Orders of the court

Respondent to pay appellant's costs of appeal

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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