Southern Wine Corporation Pty Ltd (in Liq) v Frankland River Olive Co Ltd
[2005] WASCA 236 (S)
•7 DECEMBER 2005
SOUTHERN WINE CORPORATION PTY LTD (IN LIQ) -v- FRANKLAND RIVER OLIVE CO LTD & ANOR [2005] WASCA 236 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 236 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:13/2005 | 19 AUGUST 2005 | |
| Coram: | WHEELER JA MCLURE JA PULLIN JA | 7/12/05 | |
| 6/02/06 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to have costs of the appeal No order as to costs in relation to the proceedings before the Master | ||
| B | |||
| PDF Version |
| Parties: | SOUTHERN WINE CORPORATION PTY LTD (IN LIQ) FRANKLAND RIVER OLIVE CO LTD SOUTHERN OLIVE MANAGEMENT PTY LTD |
Catchwords: | Costs Turns on own facts |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SOUTHERN WINE CORPORATION PTY LTD (IN LIQ) -v- FRANKLAND RIVER OLIVE CO LTD & ANOR [2005] WASCA 236 (S) CORAM : WHEELER JA
- MCLURE JA
PULLIN JA
DECISION : 6 FEBRUARY 2006 FILE NO/S : CACV 13 of 2005 BETWEEN : SOUTHERN WINE CORPORATION PTY LTD (IN LIQ)
- Appellant
AND
FRANKLAND RIVER OLIVE CO LTD
First Respondent
SOUTHERN OLIVE MANAGEMENT PTY LTD
Second Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : SOUTHERN WINE CORPORATION LTD (IN LIQ) -v- FRANKLAND RIVER OLIVE CO LTD & ANOR [2004] WASC 276
File No : CIV 1852 of 2004
Catchwords:
Costs - Turns on own facts
Legislation:
Nil
Result:
Appellant to have costs of the appeal
No order as to costs in relation to the proceedings before the Master
Category: B
Representation:
Counsel:
Appellant : Mr K L Christensen
First Respondent : Mr S K Dharmananda
Second Respondent : Mr S K Dharmananda
Solicitors:
Appellant : Christensen Vaughan
First Respondent : Corrs Chambers Westgarth
Second Respondent : Corrs Chambers Westgarth
(Page 3)
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 4)
1 JUDGMENT OF THE COURT: Reasons for decision in relation to this appeal were published on 7 December 2005 and orders were made disposing of the appeal. The issue of costs was left to be determined after written submissions were filed. Both parties have now filed their submissions.
2 The appellant submits that costs should follow the event and that it should therefore have its costs of the appeal and the proceedings before the Master. The respondent submits that there should be no order as to costs in relation to the appeal or the proceedings below.
3 The respondent says in its written submissions that the statement of claim pleaded only the existence of a lien. This prompted an application by the respondent to strike out the statement of claim. The respondent says that before the hearing came on before the Master, the appellant proposed an amendment to the statement of claim alleging the existence of an equitable charge as well as a lien. The application proceeded to hearing on the basis that the application was one by the appellant to amend its statement of claim. The Master, in effect, refused leave to do so and struck out the existing statement of claim.
4 Before the hearing of the appeal, a third version of a proposed statement of claim was filed and this pleaded only that there was an equitable charge. The only issue before this Court was whether or not it was arguable that the appellant could make out its claim that there was an equitable charge. That was also an issue before the Master. As a result, the costs of the appeal should follow the event. Thus the respondent should pay the appellant's costs of the appeal to be taxed.
5 That leaves the question about the appropriate order for costs in relation to the proceedings before the Master. The filing of the application to strike out was justified because the original statement of claim alleged only a lien. The proposed amended statement of claim which was before the Master continued to assert the existence of a lien, but also raised the issue about an equitable charge. Argument was directed to the issue about the lien. The appellant failed on this issue and has not sought to overturn that part of the Master's reasons. The appellant however, succeeded in showing that the Master erred in refusing leave to amend the statement of claim to plead the existence of the equitable charge. Each party therefore had partial success in the proceedings below.
6 As a result there should be no order as to costs in relation to the proceedings before the Master.
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