Tey v Optima Financial Group Pty Ltd [No 2] - [2012] WASCA 68

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 2] [2012] WASCA 68

CORAM: EM HEENAN J

HEARD: 23 FEBRUARY 2012

DELIVERED : 23 FEBRUARY 2012

PUBLISHED : 23 MARCH 2012

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:

Taxation of costs - Application to set aside certificate of taxation - Application already made to registrar and refused - Application to adjourn hearing - No merit or prospects of success - Adjournment refused - Application dismissed

Legislation:

Rules of the Supreme Court (WA), O 66 r 54

Result:

Application for adjournment refused
Application for extension of time refused

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr S V Forbes

Solicitors:

Appellant: In person
Respondent: De Vita & Dixon

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

Tey v Optima Financial Group Pty Ltd [2011] HCASL 41

EM HEENAN J: In these proceedings on 12 November 2010, the Court of Appeal, constituted by Newnes and Murphy JJA, made an order that an appeal instituted by Mrs Tey against a decision of the District Court of Western Australia, dismissing an appeal to that court from the Magistrates Court should be struck out. The decision in the Magistrates Court had been that Mrs Tey should pay an amount of $550 or thereabouts to the respondent, Optima Financial Group Pty Ltd, for accounting or audit fees rendered for services provided by the respondent at the appellant's request.
The appeal in the District Court was dismissed, pursuant to statutory powers which allow a court to dismiss such an appeal where the amount or question at issue is not reasonably proportionate to the costs likely to be occurred in the proceedings. Her Honour Judge Davis in the District Court was satisfied that this was such a case and struck out that appeal. Dissatisfied with that decision Mrs Tey appealed further.
Mrs Tey applied for leave to appeal to the Court of Appeal and, as I have already said, that appeal was struck out by the order of the Court of Appeal on 12 November 2010, again because the costs of the appeal were considered to be disproportionate to any matter in issue. When dismissing that appeal the Court of Appeal ordered that Mrs Tey should pay the respondent's costs of the appeal to be taxed. I should observe that Mrs Tey then instituted an application for special leave to appeal to the High Court of Australia from the decision of the Court of Appeal. That application was dated 10 December 2010. Further details, of course, of that application are not available to the Court but Mrs Tey has informed the Court today that in effect that application…

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 68
Decision Date: 23 MARCH 2012

CaseChat Overview and Summary

In the case of Tey v Optima Financial Group Pty Ltd [No 2], the applicant sought to challenge the taxation of costs, with the application to set aside a certificate of taxation previously made to the registrar and refused. The applicant also sought an adjournment of the hearing, arguing that the application had merit and prospects of success. The Federal Circuit and Family Court of Australia was tasked with determining these issues.

The legal issues before the court were whether the application to set aside the certificate of taxation had merit or prospects of success, and if the adjournment of the hearing should be granted. The court considered whether the application to set aside the certificate of taxation had any merit and if there was a reasonable possibility of success in the appeal, in light of the refusal by the registrar. Additionally, the court evaluated whether there were exceptional circumstances warranting an adjournment of the hearing.

The court found that the application to set aside the certificate of taxation did not have merit or prospects of success. The applicant had not demonstrated any error in the registrar's decision, nor had they provided a compelling reason to revisit the matter. As such, the court dismissed the application to set aside the certificate of taxation. Furthermore, the court declined to grant the adjournment of the hearing, concluding that there were no exceptional circumstances to warrant the adjournment. Consequently, the application to adjourn the hearing was dismissed.

The final orders of the court were that the application to set aside the certificate of taxation was dismissed, and the application to adjourn the hearing was also dismissed. The costs of both applications were ordered to be paid by the applicant.

Orders