ALLANSON J: On 2 November 2009, the respondent commenced proceedings against the appellants for money…
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.
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AGLC
Starrs v Retravision (WA) Ltd [2012] WASCA 67
Case
[2012] WASCA 67
Decision Date
CaseChat Overview and Summary
Starrs v Retravision (WA) Ltd involved an appeal against the refusal of an application to set aside a default judgment. The respondent, Retravision (WA) Ltd, had obtained judgment against the appellants, Starrs, for $3,141,011.92. The judgment was entered in default of appearance after the appellants failed to respond to the proceedings. The appellants subsequently applied to set aside the judgment, but their application was dismissed by Master Sanderson. The appellants then appealed the decision of the master. The central legal issue was whether the court should set aside the default judgment and, if so, on what basis. The appellants argued that the judgment was irregular because it overstated the amount owed, as the respondent had received $329,500 from the receivers and managers appointed to Starrs & Co Pty Ltd after the writ was issued but before judgment was entered. The court considered the principles governing the setting aside of default judgments and the discretion to award costs in such cases. It concluded that the judgment should be varied to account for the $329,500 received by the respondent from the receivers and managers, but dismissed the appeal on other grounds. The court also considered the costs associated with the appeal and found that the appellants were not entitled to a full award of costs, as they had only achieved a nominal victory.
The court exercised its discretion under the Supreme Court Act 1935 (WA) s 37(1) and found that the appellants were not entitled to the whole of their costs, both of the action and the appeal. Instead, the court ordered that the respondent should 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 court noted that the decision on costs was based on the 'reality' of the circumstances involved, as well as the mixed outcome of the appeal. The court's decision highlighted the importance of considering the broader context and underlying issues in determining the appropriate allocation of costs in cases involving default judgments and appeals.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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. 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. 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). Costs of 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. 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]. 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. 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. 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. 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.