Tey v Optima Financial Group Pty Ltd - [2012] WASCA 192

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2012] WASCA 192

CORAM: PULLIN JA
NEWNES JA

HEARD: 7 AUGUST 2012

DELIVERED : 10 OCTOBER 2012

FILE NO/S: CACV 11 of 2012

BETWEEN: KOK YONG TEY
Appellant
AND
OPTIMA FINANCIAL GROUP PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER GETHING
Citation  :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2012] WADC 20
File No  :APP 44 of 2009

Catchwords:

Practice and procedure - Appeal against indemnity costs order - Application to strike out appeal as having no reasonable prospect of success - Whether indemnity costs should be ordered against litigant in person - Grounds of appeal without merit

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B W Ashdown

Solicitors:

Appellant: In person
Respondent: De Vita & Dixon

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

Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Mallet v Mallet (1989) 156 CLR 605
Michael Wilson & Partners v Nicholls [2011] HCA 48
Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248
Tey v Optima Financial Group Pty Ltd [2012] WADC 20
Tey v Optima Financial Group Pty Ltd [2012] WASCA 193
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 18 WAR 190

JUDGMENT OF THE COURT: This is an appeal against an order of Commissioner Gething in the District Court that the appellant pay the respondent's costs of an application to that court on an indemnity basis: Tey v Optima Financial Group Pty Ltd [2012] WADC 20. The respondent has applied for the appeal to be dismissed, in substance, on the ground that none of the grounds of appeal have any reasonable prospect of success.
The history of the litigation between the parties up to this point is described in the reasons of this court in Tey v Optima Financial Group Pty Ltd[No 3] [2012] WASCA 113. It is, however, appropriate to set out the background to this particular appeal.

Background

The appeal has its genesis in proceedings in the Magistrates Court in which the respondent obtained judgment against the appellant in the sum of $550, plus interest and costs of $368.05. The appellant appealed to the District Court. On 25 June 2010, Davis DCJ dismissed the appeal with costs. Her Honour did so under s 43 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) on the ground that the likely costs of the appeal were disproportionate to the amount in issue and, further, that none of the grounds of appeal had any prospect of success. An appeal to this court against her…

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: [2012] WASCA 192
Decision Date: 10 OCTOBER 2012

CaseChat Overview and Summary

In this case, Tey, the appellant, appealed against an order made by Commissioner Gething in the District Court that she pay the respondent's costs of an application to that court on an indemnity basis. The respondent, Optima Financial Group Pty Ltd, has applied for the appeal to be dismissed, in substance, on the ground that none of the grounds of appeal have any reasonable prospect of success. The litigation between the parties had a long history, with the respondent obtaining judgment against the appellant in the Magistrates Court, which was subsequently upheld by the District Court. The appellant then filed a chamber summons in the District Court seeking leave to appeal against the costs order made by the District Court. The respondent's solicitors invited the appellant to consent to orders dismissing the application for leave to appeal, with no order as to costs. The appellant did not respond in time, and the respondent's solicitors reiterated that costs would be sought on an indemnity basis if the appellant did not consent to the dismissal of the application.

The legal issues the court had to decide were whether the appeal had any reasonable prospect of success and whether indemnity costs should be ordered against the appellant, who was a litigant in person. The court had to consider the circumstances of the case and the conduct of the appellant in determining whether indemnity costs were appropriate. The court also had to consider whether the appeal had any reasonable prospect of success and whether it was in the interests of justice to allow the appeal to proceed.

The court found that none of the grounds of appeal had any reasonable prospect of success and that the appellant's conduct warranted the imposition of indemnity costs. The court noted that the appellant had delayed in responding to the respondent's proposal to dismiss the application for leave to appeal and had ultimately withdrawn her challenge to the costs order. The court also noted that the appellant had previously appealed against the orders made by the District Court and had applied for special leave to appeal to the High Court, both of which were dismissed. The court found that the appellant's appeal was misconceived and that she had acted unreasonably in pursuing it. The court also found that the appellant's conduct warranted the imposition of indemnity costs.

The court dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal on an indemnity basis. The court also noted that the appellant's conduct had been vexatious and oppressive and that it was in the interests of justice to impose indemnity costs. The court ordered the appellant to pay the respondent's costs of the appeal on an indemnity basis, with the amount to be assessed if not agreed.

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: This is an appeal against an order of Commissioner Gething in the District Court that the appellant pay the respondent's costs of an application to that court on an indemnity basis: Tey v Optima Financial Group Pty Ltd [2012] WADC 20. The respondent has applied for the appeal to be dismissed, in substance, on the ground that none of the grounds of appeal have any reasonable prospect of success. The history of the litigation between the parties up to this point is described in the reasons of this court in Tey v Optima Financial Group Pty Ltd[No 3] [2012] WASCA 113. It is, however, appropriate to set out the background to this particular appeal. The appeal has its genesis in proceedings in the Magistrates Court in which the respondent obtained judgment against the appellant in the sum of $550, plus interest and costs of $368.05. The appellant appealed to the District Court. On 25 June 2010, Davis DCJ dismissed the appeal with costs. Her Honour did so under s 43 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) on the ground that the likely costs of the appeal were disproportionate to the amount in issue and, further, that none of the grounds of appeal had any prospect of success. An appeal to this court against her Honour's orders, and a subsequent application for special leave to appeal to the High Court, were dismissed. On 21 September 2011, the appellant filed a chamber summons in the District Court seeking leave to appeal against the costs order made by Davis DCJ on 25 June 2010. On 3 October 2011, the respondent's solicitors wrote to the appellant inviting her to consent to orders dismissing the application for leave to appeal, with no order as to costs. The solicitors said that the appellant's application for leave to appeal was misconceived, pointing out that the appellant's appeal to this court against the orders made by Davis DCJ, and the application for special leave to the High Court, had included the costs order. The solicitors enclosed a memorandum of consent orders for signing by the appellant. They went on to say that if the appellant did not consent to the application being dismissed they would have to commence work to oppose it and would seek indemnity costs in the event that it was unsuccessful. The appellant responded by letter dated 12 October 2011, in which she said that she was not yet in a position to make a decision one way or the other. She said that she would contact the respondent's solicitors by the end of that month. The respondent's solicitors wrote to the appellant on 18 October 2011, extending the time for acceptance of their proposal until Friday, 21 October 2011. They reiterated that costs would be sought on an indemnity basis if the appellant did not consent to the dismissal of the application. The appellant did not accept the respondent's proposal within the time stipulated and nor, it seems, did she revert to the respondent's solicitors with a substantive response by the end of October 2011. Finally, by a letter dated 2 December 2011 to the court and copied to the respondent's solicitors, the appellant advised that she was withdrawing her challenge to the costs order. On 11 January 2012, the appellant filed a notice of discontinuance of the application for leave to appeal.

Ratio Decidendi

Legal Principle Established

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