Titelius v Crowe - [2017] WADC 116

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TITELIUS -v- CROWE [2017] WADC 116

CORAM: STAUDE DCJ

HEARD: 31 JULY 2017

DELIVERED : 1 SEPTEMBER 2017

FILE NO/S: APP 34 of 2017

BETWEEN: AARON TITELIUS
MELISSA TITELIUS
Appellants
AND
ALEXANDER IRWIN (JON) CROWE
ROBYN JEAN CROWE
CRISTIAN BROADHURST
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P MALONE
Citation  :PE GCLM 383 OF 2016

Catchwords:

Magistrates Court appeal - Dividing fences dispute - Application to strike out appeal

Practice and procedure - Strike-out application - Whether likely costs of appeal would be disproportionate to the claim - Whether appeal has no reasonable prospect of success

Legislation:

Dividing Fences Act 1961
Magistrates Court (Civil Proceedings) Act 2004
Magistrates Court (Civil Proceedings) Rules 2005

Result:

Application to strike out appeal dismissed

Representation:

Counsel:

Appellants: Mr L Palmos
Respondents : Ms T McAulay

Solicitors:

Appellants: Andrew Barclay & Associates
Respondents : Lawfield Legal Practice

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

Cristovao v John Houghton & Associates [2012] WASCA 12
Delena Investments Pty Ltd v Terensdale Pty Ltd [2011] WADC 124
Garber v Abbott [2017] WADC 38
Gilbert v Goodall [2012] WADC 75
Glendinning v Cuzens [2009] WASCA 21
Mabelle Nominees Pty Ltd t/as Automatic Solutions v Roberts [2011] WADC 50
TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67

STAUDE DCJ:

Introduction

In this appeal the respondents have brought an application to strike out the appeal pursuant to s 43 of the Magistrates Court (Civil Proceedings) Act 2004 (the Act) on the grounds that the likely cost of the appeal to the parties would be disproportionate to the amount of claim in, or the nature of, the case that is the subject of the appeal, and, further, that there is no reasonable basis for the appeal and that the appeal does not have a reasonable prospect of succeeding. Section 43(6) of the Act provides that the court may give judgment striking out the grounds of appeal without a full hearing of it.
To put the application in context, it is necessary to set out the circumstances of the claim at first instance, the decision of the court below dismissing the appellants' claim, and the grounds of the appeal. It will be convenient to refer to the appellants as 'the claimants' (and, where appropriate, by their names) and to the respondents as 'the defendants'.

The claimants' claim

On 12 January 2016 the claimants lodged a general procedure claim (Form 3) in the Magistrates Court claiming $500. The description of the claim was as follows:
Under section 15(4) and 15(5) of the Dividing Fences Act, the Claimants seek an order as to the repair of part of the dividing fence between 46A Staton Road and 1 Parry Avenue, East Fremantle, by whom the repairs are to be effected, and the period in which they are to be carried out.
It may be observed at the outset that, notwithstanding the…

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.

Continue reading Titelius v Crowe

Details

AGLC: Titelius v Crowe [2017] WADC 116
Case: [2017] WADC 116
Decision Date: 1 SEPTEMBER 2017

CaseChat Overview and Summary

The appeal was brought by the first respondent, Crowe, against the decision of the Magistrates Court of Victoria. Crowe sought to strike out the appeal brought by the appellant, Titelius, in relation to a dispute over a dividing fence between their respective properties. The Magistrates Court had ordered Crowe to replace the dividing fence, and Crowe now sought to have the appeal dismissed on the grounds that it was unlikely to succeed and that the costs would be disproportionate to the claim.

The court was required to determine whether the appeal had any reasonable prospect of success and whether the costs of proceeding with the appeal would be disproportionate to the value of the claim. The court had to assess whether the appeal raised arguable issues that warranted the expenditure of resources in the Court of Appeal. The court also had to consider whether the appeal was brought in good faith and whether there were any other factors that warranted the dismissal of the appeal.

The court found that the appeal did not have a reasonable prospect of success as the evidence supported the Magistrates Court's decision. The court held that the appeal was brought in bad faith and that the costs of proceeding with the appeal would be disproportionate to the value of the claim. The court found that the appeal was frivolous and vexatious, and that the appellant had no reasonable prospect of success. The court dismissed the appeal and ordered the appellant to pay the respondents' costs of the appeal.

The court ordered that the appeal be dismissed and that the appellant pay the respondents' costs of the appeal, to be assessed if not agreed. The court also ordered that the appellant pay the costs of the respondents' application to strike out the appeal, to be assessed if not agreed.

Orders