Starrs v Retravision (WA) Ltd
[2012] WASCA 67 (S)
•27 MARCH 2012
STARRS -v- RETRAVISION (WA) LTD [2012] WASCA 67 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 67 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:4/2011 | 23 NOVEMBER 2011 | |
| Coram: | PULLIN JA MURPHY JA ALLANSON J | 27/03/12 | |
| 11/05/12 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appellants to pay 75% of respondent's costs | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER STARRS JANINE STARRS RETRAVISION (WA) LTD |
Catchwords: | Costs Judgment varied Appeal otherwise dismissed Turns on own facts |
Legislation: | Nil |
Case References: | Amaca Pty Ltd v Moss [2007] WASCA 162 (S) Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : STARRS -v- RETRAVISION (WA) LTD [2012] WASCA 67 (S) CORAM : PULLIN JA
- MURPHY JA
ALLANSON J
DECISION : 11 MAY 2012 FILE NO/S : CACV 4 of 2011 BETWEEN : CHRISTOPHER STARRS
- JANINE STARRS
Appellants
AND
RETRAVISION (WA) LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : RETRAVISION (WA) LTD v STARRS [2010] WASC 373
File No : CIV 2890 of 2009
(Page 2)
Catchwords:
Costs - Judgment varied - Appeal otherwise dismissed - Turns on own facts
Legislation:
Nil
Result:
Appellants to pay 75% of respondent's costs
Category: B
Representation:
Counsel:
Appellants : Mr R Ross-Smith
Respondent : Mr G D Cobby
Solicitors:
Appellants : Fox Tucker Lawyers
Respondent : Norton Rose Australia
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Moss [2007] WASCA 162 (S)
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261
Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103 (S)
(Page 3)
1 JUDGMENT OF THE COURT: On 27 March 2012, the court delivered judgment, varying the amount of the judgment entered in default of appearance but otherwise dismissing the appeal. The judgment sum was varied to allow for $329,500 which the respondent received from the receivers and managers appointed to Starrs & Co Pty Ltd, after the issue of the writ but before judgment was entered.
2 The costs of the appeal have now been the subject of submissions by each party. The appellants seek orders that the respondent pay the costs of and incidental to the application before Master Sanderson, and the appellants' costs of and incidental to the appeal, save for the costs of the hearing. The respondent submits that it should receive the whole of its costs, both of the action and the appeal.
Principles governing costs
3 The principles to be applied in an application of this kind were recently restated in Frigger v Professional Services of Australia Pty Ltd [No 2][2011] WASCA 103 (S). Costsof and incidental to all proceedings in court are in the discretion of the court: Supreme Court Act 1935 (WA) s 37(1). The discretion must be exercised judicially. Relevantly, the court said of the discretion to award costs where a party has been successful in having a judgment varied on appeal [12]:
However, deciding what amounts to success is not always revealed merely by reading the orders of the court. Where an appellant has been successful in obtaining what is, in effect, a variation in their favour of orders below, there may remain valid reasons to not award costs in favour of the appellant where the appellant has not been successful in the underlying, real contest: Laws v Australian Broadcasting Tribunal (1989) ALD 522; (1989) 85 ALR 659, 677. Where appellants have only won a nominal victory then the court may not award costs. Success in proceedings is to be determined by the 'reality' of the circumstances involved: Oshlack v Richmond River Council[1998] HCA 11; (1998) 193 CLR 72 [70] (McHugh J); Alltrans Express Ltd v CVA Holdings Ltd[1984] 1 WLR 394, 401.
4 Where there is a mixed outcome, the apportionment of costs is very much a matter of impression and broad evaluation. Mathematical precision is illusory: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd[1993] FCA 259; (1993) 26 IPR 261; Amaca Pty Ltd v Moss [2007] WASCA 162 (S) [6].
(Page 4)
The circumstances
5 On 4 February 2010 the respondent entered judgment against the appellants for the sum of $3,141,011.92. Judgment was entered in default of appearance.
6 On 3 June 2011, the appellants applied to set the judgment aside. Master Sanderson heard the application on 21 October 2010 and delivered judgment dismissing the application on 13 December 2010.
7 The decision of the master did not deal with whether the judgment had been irregularly entered because the respondent failed to account for the monies received up to December 2009. The appellants have not suggested that the issue was raised before the master.
8 The appellants appealed from the master's judgment. The appellants' case was filed on 24 March 2011. The appellants were then unrepresented. They raised numerous grounds, including that the judgment was irregular because it was for an amount or amounts that were overstated (ground 5.2.1). The submissions in support of ground 5.2.1 argued that the only amount owed by the appellants was for goods sold by Starrs & Co for which the respondent had not been paid. This was not the basis on which the judgment was later varied.
9 By October 2011, the appellants were legally represented. On 3 November 2011, they filed two affidavits in the appeal, in which they raised the fact that the judgment did not provide credit for dividends paid by the receivers and managers. On 14 November 2011, they filed further affidavits, in which they again referred to these amounts.
10 On 22 November 2011, the appellants filed supplementary submissions. They sought to rely on the additional affidavits. They submitted that they were entitled as of right to have the judgment set aside as it was for an excessive amount.
11 On 22 November 2011, the respondent filed supplementary submissions 'in the event the appellants' application for the admission of additional evidence is granted'. In those submissions, the respondent conceded that although judgment was expressed in terms of the appellants' liability at 30 September 2009, it had received $329,500 from the receivers and managers between 4 November and 10 December 2009. To that extent it conceded the judgment was overstated.
(Page 5)
12 In determining the appeal, the court accepted the respondent's concession and varied the amount of the judgment while otherwise dismissing the appeal.
Conclusion
13 The appeal was primarily argued on whether the appellants should be permitted to defend the claim on the basis that they had an arguable defence. The appellants also argued that the default judgment was irregularly entered on several grounds, including the failure of the respondent to give notice that it intended to enter judgment, and the overstatement of the judgment amount. They submitted that the judgment should be set aside.
14 On the principal question in the appeal, whether the judgment should be set aside and the appellants given leave to defend, the respondent was wholly successful. The judgment has been varied, and the amount by which it has been reduced is substantial, but the judgment stands. In reality the respondent succeeded.
15 On the other hand, the respondent's concession was made late, and only in response to the appeal. The respondent did not move to vary the judgment, but only conceded it should be reduced after the overstatement had been raised by the appellants in November 2011. This should be reflected in the costs order in relation to the appeal.
16 It is appropriate, having regard to the substance of the matters that were argued, that the appellants should pay 75% of the respondent's costs of the appeal.
17 The appellants have not disclosed any basis to interfere with the order for the costs of the proceedings before the master.
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