Supreme Court of Western Australia

[2015] WASCA 4 (S)

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SHERAZ PTY LTD -v- VEGAS ENTERPRISES PTY LTD [2015] WASCA 4 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 4 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:26/2013	Heard:	16 JANUARY 2015
Coram:	BUSS JA MURPHY JA CHANEY J	Delivered:	16/01/15
No of pages:	4	Judgment Part:	1 of 1
Result:	Orders made
Category:	B
PDF Version

Parties:	SHERAZ PTY LTD as Trustee for the TERRANORA FAMILY TRUST VEGAS ENTERPRISES PTY LTD
Catchwords:	Practice and procedure Costs Costs orders on appeal and at first instance
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 10(2) Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1) Supreme Court Act 1935 (WA), s 37(1)
Case References:	Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SHERAZ PTY LTD -v- VEGAS ENTERPRISES PTY LTD [2015] WASCA 4 (S) CORAM : BUSS JA

MURPHY JA
CHANEY J

HEARD : 16 JANUARY 2015 DELIVERED : 16 JANUARY 2015 FILE NO/S : CACV 26 of 2013 BETWEEN : SHERAZ PTY LTD as Trustee for the TERRANORA FAMILY TRUST

Appellant

AND

VEGAS ENTERPRISES PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : SHERAZ PTY LTD -v- VEGAS ENTERPRISES PTY LTD [2013] WASC 45

File No : CIV 2648 of 2012

Catchwords:

Practice and procedure - Costs - Costs orders on appeal and at first instance

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 66 r 10(2)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1)
Supreme Court Act 1935 (WA), s 37(1)

Result:

Orders made

Category: B

Representation:

Counsel:

Appellant : Mr A P Rumsley
Respondent : Mr B D Luscombe

Solicitors:

Appellant : Alan Rumsley
Respondent : Clifford Chance

Case(s) referred to in judgment(s):

Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4



1 REASONS OF THE COURT: This court has published its reasons for decision in the appeal today. See Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4. The solicitors for the parties were provided with an advance copy of the reasons to enable them to make submissions about the orders that should now be made.

2 The parties are in dispute as to the orders that should be made in relation to the costs of the appeal and the costs order made by Master Sanderson at first instance. The master ordered the appellant in effect to pay the respondent's costs of the action, including the costs of the respondent's application for summary judgment, alternatively, to strike out the action.

3 Section 37(1) of the Supreme Court Act 1935 (WA) confers a broad discretion on the court in relation to costs with full power to determine, relevantly, to what extent such costs are to be paid. This discretionary power enables the court to make orders with respect to the allowance of costs generally. See also O 66 r 1(1) of the Rules of theSupreme Court1971 (WA), which should be read together with s 37(1) of the Act.

4 By O 66 r 10(2) of the Rules of the Supreme Court, relevantly, in the case of an appeal, the costs of the proceedings giving rise to the appeal, as well as the costs of the appeal and of the proceedings connected with it, may be dealt with by the court hearing the appeal.

5 Rule 5(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that the Court of Appeal Rules must be read with the Rules of the Supreme Court.

6 In the present case, the appellant relied on four grounds of appeal and the respondent relied on a notice of contention.

7 The appeal was part heard on 14 March 2014. It was necessary to adjourn the hearing on that date because the respondent applied in the course of the hearing for leave to amend its notice of contention. The amendment was significant. The appellant opposed a grant of leave to amend. The court directed the parties to file and serve written submissions in relation to the application to amend and the substantive proposed amendment. This was done. The appeal was relisted for a further hearing on 22 August 2014 and the hearing of the appeal was completed on that date.

8 The court has decided unanimously that the respondent should have leave to amend its notice of contention and that the appeal should be dismissed. However, the appellant had some success. It failed on grounds 3 and 4 but it made out ground 1 of the appeal.

9 The court considered ground 2 of the appeal and ground 1 of the amended notice of contention together. The respondent made out ground 1 of the amended notice of contention and the appeal was dismissed on that basis. The amendment to ground 1 was critical to the outcome of the appeal.

10 The respondent also made out the second aspect of ground 2 of the amended notice of contention, but the court decided it was unnecessary to rely upon that aspect in the disposition of the appeal. It was unnecessary for the court to deal with the first aspect of ground 2.

11 After taking into account the successes and failures of each of the parties on particular issues at first instance and on the appeal, the necessity to adjourn the appeal part heard on 14 March 2014 as a result of the respondent's application to amend its notice of contention, the necessity to order the parties to make written submissions in connection with the application to amend, the significant nature of the amendment, the court's reasons for decision in the appeal and the submissions of the parties on the orders that now should be made, justice would be done as between the parties if:

(a) the appellant was ordered to pay 70% of the respondent's taxed or agreed costs of the appeal, including the costs of the notice of contention, the amended notice of contention and any reserved costs; and

(b) the order as to costs made by Master Sanderson was not disturbed.

12 These orders are preferable to this court endeavouring to make individual orders by reference to particular issues or events in the appeal. Overall, the respondent has in the result been successful at first instance and on the appeal.

13 Accordingly, the orders that the court makes are as follows:

(1) Appeal dismissed.

(2) The appellant do pay 70% of the respondent's taxed or agreed costs of the appeal, including the costs of the notice of contention, the amended notice of contention and any reserved costs.

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