Tey v Optima Financial Group Pty Ltd - [2010] WADC 98

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2010] WADC 98

CORAM: DAVIS DCJ

HEARD: 2 JUNE 2010

DELIVERED : 25 JUNE 2010

FILE NO/S: APP 44 of 2009

BETWEEN: KOK YONG TEY
Appellant (Defendant)
AND
OPTIMA FINANCIAL GROUP PTY LTD
Respondent (Plaintiff)

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE COCKRAM
File No  :CIV 8354 of 2008

Catchwords:

Appeal from Magistrates Court - Application to strike out appeal - Costs of appeal disproportionate to the amount of and nature of the claim - Appeal has no reasonable prospect of succeeding

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 s 43(3), s 43(4)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Defendant) : In person
Respondent (Plaintiff) : Mr B W Ashdown

Solicitors:

Appellant (Defendant) : Not applicable
Respondent (Plaintiff) : De Vita & Dixon Lawyers

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

Apex Holiday Centre (Inc) v Lynn [2004] WASCA 35
Avsar v Westland Healthcare Ltd [2008] WASCA 35
Defendi v Eden Hill Plasterers [2008] WASCA 269
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (2000) 22 WAR 372
Foran v Wight (1989) 168 CLR 385
Panamena Europa Navigacion (Compania Limitada) v Frederick Leyland & Co Ltd (J Russell & Company) [1947] AC 428
Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199
Tobin v Dodd & Ors [2004] WASCA 288
World Best Holdings Ltd v Sarker [2010] NSWCA 24

DAVIS DCJ: Mrs Tey was the defendant in an action brought against her by Optima Financial Group Pty Ltd for the sum of $550. Following a trial in the Magistrates Court on 18 June 2009, Optima obtained judgment against Mrs Tey on 2 July 2009. Judgment was for the sum of $550 together with interest at the rate of 6 per cent per annum and costs fixed in the sum of $368.05.
Mrs Tey has appealed from that judgment.
Optima has brought an application to strike out her appeal:
1.Pursuant to s 43(3) of the Magistrates Courts (Civil Proceedings) Act 2004. By that section, the appeal court may strike out an appeal if the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal.
2.Pursuant to s 43(4) of the Magistrates Court (Civil Proceedings) Act 2004. By that section the appeal court may strike out any ground of the appeal if there is no reasonable basis for it, it does not have a reasonable prospect of succeeding, no miscarriage of justice would occur by striking it out or if it is frivolous, vexatious or improper. Optima in this case has applied to strike out all of Mrs Tey's grounds of appeal.
Relevant to the second part of Optima's application pursuant to s 43(4) of the Magistrates Court (Civil Proceedings) Act, Mrs Tey had indicated, both before the bringing…

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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Details

Case: [2010] WADC 98
Decision Date: 25 JUNE 2010

CaseChat Overview and Summary

The appeal in Tey v Optima Financial Group Pty Ltd was brought before the court by the first respondent, Tey, against the decision of the Magistrates Court which had dismissed his claim against the appellant, Optima Financial Group Pty Ltd. The dispute originated from a claim Tey made against Optima for alleged breaches of the Australian Consumer Law and for misleading or deceptive conduct. The Magistrates Court found that Tey's claim was barred by the doctrine of waiver and dismissed the case. Tey sought to appeal this decision to a higher court, but Optima applied to strike out the appeal on the grounds that it was frivolous and vexatious and that the costs of proceeding with the appeal were disproportionate to the amount and nature of the claim.

The court was required to determine whether the appeal had a reasonable prospect of succeeding and whether it was appropriate to strike it out. The court considered the nature of the claim, the likelihood of success of the appeal, and the proportionality of the costs of the appeal. The court also had to consider whether the appeal was an abuse of process and whether it was in the interests of justice to strike it out.

The court found that the appeal had no reasonable prospect of success, as the arguments raised by Tey were unlikely to be successful in a higher court. The court also found that the costs of the appeal were disproportionate to the amount and nature of the claim and that proceeding with the appeal would be an abuse of process. The court held that it was appropriate to strike out the appeal and award costs to Optima. The appeal was struck out, and Tey was ordered to pay Optima's costs of the application to strike out the appeal.

Orders