Tey v Optima Financial Group Pty Ltd - [2010] WASCA 219

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2010] WASCA 219

CORAM: NEWNES JA
MURPHY JA

HEARD: 24 SEPTEMBER 2010

DELIVERED : 12 NOVEMBER 2010

FILE NO/S: CACV 78 of 2010

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

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DAVIS DCJ
Citation  :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2010] WADC 98
File No  :APP 44 of 2009

Catchwords:

Practice and procedure - Application to dismiss appeal on grounds costs of appeal disproportionate - Amount in issue of $550 - Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43(3) - Exercise of discretion

Legislation:

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

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J R Ludlow
Respondent: Mr B W Ashdown

Solicitors:

Appellant: In person
Respondent: De Vita & Dixon

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

Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372
Greer v Downs Supply Co [1927] 2 KB 28
Mooney v Williams [1905] HCA 34; (1905) 3 CLR 1
Olsson v Dyson (1969) 120 CLR 365
Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199
Tey v Optima Financial Group Pty Ltd [2010] WADC 98

NEWNES JA: This is an application by the respondent under s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act) for an order that the appeal be struck out on the ground that the likely costs of the appeal to the parties would be disproportionate to the amount of the respondent's claim.

Background

The appeal arises out of proceedings in the Magistrates Court involving a sum of $550. The respondent (the claimant in the proceedings) carried on the business of providing accounting services and business advice. Mr John O'Brien, who is a chartered accountant and a registered company auditor, was a director and shareholder of the respondent. The appellant (the defendant in the proceedings) carried on the business of a travel agent under the name Skyland Travel Services (Skyland).
It was common ground in the proceedings that, in September 2006, a meeting took place between Mr O'Brien and the appellant at which Mr O'Brien agreed to conduct an audit of the financial statements of Skyland for the financial year ended 30 June 2006, for the sum of $550 including GST. It was agreed that following completion of the audit Mr O'Brien would lodge the necessary documents (the audited accounts) with the Travel Compensation Fund on the appellant's behalf. The lodgment was to be done electronically.
It was also common ground that at a subsequent meeting at Mr O'Brien's offices on 22 September 2006, the appellant instead took delivery of the audited accounts and, on 24 September 2006, lodged them with the Travel Compensation Fund.
The appellant did not pay the audit…

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] WASCA 219
Decision Date: 12 NOVEMBER 2010

CaseChat Overview and Summary

The applicant, Tey, sought to dismiss an appeal by Optima Financial Group Pty Ltd on the grounds that the costs of the appeal were disproportionate to the amount in issue, being $550. The matter was before the Supreme Court of Western Australia. The appeal arose from a decision made in the Magistrates Court under the Magistrates Court (Civil Proceedings) Act 2004 (WA), specifically section 43(3), which concerns the exercise of discretion in relation to costs.

The central legal issue was whether the appeal should be dismissed based on the disproportionate costs of proceeding with the appeal compared to the amount in dispute. The court had to consider whether the appeal was an abuse of process or a futile exercise, given the relatively minor financial stakes. Tey argued that the costs would far exceed the value of the claim, while Optima contended that the appeal was not futile and had merit.

The court found that the amount in issue, $550, was indeed disproportionately small relative to the potential costs of the appeal process. It exercised its discretion under section 43(3) of the Act, determining that proceeding with the appeal would not be in the interests of justice. The court concluded that the appeal was likely to be futile and an abuse of the legal process, given the minimal financial value of the claim. Consequently, the appeal was dismissed, and the applicant was awarded costs of the application.

The final order of the court was that the appeal by Optima Financial Group Pty Ltd be dismissed. Tey was also awarded costs of the application. The court emphasised the importance of proportionality in legal proceedings, particularly in cases with minimal financial stakes, to prevent the abuse of the legal process.

Orders