Walker as Trustee for Walker Superannuation Fund v Clough Property Claremont Pty Ltd
[2010] WASCA 232 (S)
•6 DECEMBER 2010
WALKER as Trustee for WALKER SUPERANNUATION FUND -v- CLOUGH PROPERTY CLAREMONT PTY LTD [2010] WASCA 232 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASCA 232 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:152/2009 | ON THE PAPERS | |
| Coram: | MARTIN CJ NEWNES JA MURPHY JA | 6/12/10 | |
| 28/03/11 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appellants to pay respondent's costs of the appeal | ||
| B | |||
| PDF Version |
| Parties: | GRAHAM GEOFFREY WALKER as Trustee for WALKER SUPERANNUATION FUND THELMA JEAN WALKER as Trustee for WALKER SUPERANNUATION FUND CLOUGH PROPERTY CLAREMONT PTY LTD |
Catchwords: | Costs Application by appellants under O 66 r 1(3) of the Rules of the Supreme Court to pay only a portion of respondent's costs of appeal Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1 Sale of Land Act 1970 (WA) Town Planning and Development Act 1928 (WA) |
Case References: | Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) Commissioner of Australian Federal Police v Razzi (1991) 30 FCR 64 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Nikolaou Papasavas Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394 Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85 Walker as Trustee for Walker Superannuation Fund v Clough Properties Claremont Pty Ltd [2010] WASCA 232 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WALKER as Trustee for WALKER SUPERANNUATION FUND -v- CLOUGH PROPERTY CLAREMONT PTY LTD [2010] WASCA 232 (S) CORAM : MARTIN CJ
- NEWNES JA
MURPHY JA
DECISION : 28 MARCH 2011 FILE NO/S : CACV 152 of 2009 BETWEEN : GRAHAM GEOFFREY WALKER as Trustee for WALKER SUPERANNUATION FUND
- First Appellant
THELMA JEAN WALKER as Trustee for WALKER SUPERANNUATION FUND
Second Appellant
AND
CLOUGH PROPERTY CLAREMONT PTY LTD
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : KENNETH MARTIN J
Citation : GRAHAM GEOFFREY WALKER and THELMA JEAN WALKER as trustees for the WALKER SUPERANNUATION FUND -v- CLOUGH PROPERTY CLAREMONT PTY LTD [2009] WASC 367
File No : CIV 2180 of 2009
Catchwords:
Costs - Application by appellants under O 66 r 1(3) of the Rules of the Supreme Court to pay only a portion of respondent's costs of appeal - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1
Sale of Land Act 1970 (WA)
Town Planning and Development Act 1928 (WA)
Result:
Appellants to pay respondent's costs of the appeal
Category: B
Representation:
Counsel:
First Appellant : No appearance
Second Appellant : No appearance
Respondent : No appearance
Solicitors:
First Appellant : Solomon Brothers
Second Appellant : Solomon Brothers
Respondent : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S)
Commissioner of Australian Federal Police v Razzi (1991) 30 FCR 64
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Nikolaou Papasavas Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394
Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85
Walker as Trustee for Walker Superannuation Fund v Clough Properties Claremont Pty Ltd [2010] WASCA 232
(Page 4)
- JUDGMENT OF THE COURT:
Introduction
1 On 6 December 2010 this court unanimously dismissed an appeal by Graham Geoffrey Walker and Thelma Jean Walker as trustees for the Walker Superannuation Fund (the Walkers) against a decision dismissing their claim that a contract to purchase a residential unit in Claremont from Clough Property Claremont Pty Ltd (the Seller) was void for contravention of s 13 and/or s 14 of the Sale of Land Act 1970 (WA) (the SLA) (Walker as Trustee for Walker Superannuation Fund v Clough Properties Claremont Pty Ltd [2010] WASCA 232). On dismissing their appeal the court directed that the parties file and serve competing submissions and minutes of proposed orders regarding the costs of the appeal. It was also ordered that this matter be dealt with on the papers, without the need for a further oral hearing. These are the reasons for the orders that will be made with respect to the costs of the appeal.
2 Instead of the usual order that costs follow the event, the Walkers seek an order that they pay 70% of the Seller's costs of the appeal. Before dealing with the two grounds argued in support of that order, it is convenient to set out briefly some basic propositions regarding the legal context in which the submissions are made.
Law regarding costs
3 It is trite that although the court has an unfettered discretion regarding costs, generally costs will follow the event: Rules of the Supreme Court 1971 (WA), O 66 r 1(1). As a result, it is incumbent on an unsuccessful party to satisfy the court of good reasons for a departure from this course: Nikolaou Papasavas Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394, 407 - 408. A court may be persuaded to make orders that only a percentage of costs be recovered in circumstances where, notwithstanding that a party has been ultimately successful, that party has been unsuccessful in respect of certain discrete issues in the proceedings: Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85 [28] (Owen J); Rules of the Supreme Court O 66 r 1(3). In Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) the Court of Appeal stated that:
[T]he power to adjust an order for costs by reference to particular issues upon which the generally successful party has failed, is properly exercised only where there are discrete and severable issues upon which the generally successful party has failed, and which have added to the cost of the proceedings in a significant and readily discernible way [7].
(Page 5)
4 It is clear from these authorities that the power to deprive a successful appellant of part of his or her costs is not to be exercised upon a microscopic examination of the fate of each and every legal contention or argument advanced during the appeal, but only arises for consideration in cases where the appellant has failed in relation to a significant component of his or her case on appeal.
The contentions of the parties
5 The Walkers first rely upon the fact that the Seller advanced, in its notice of contention, an argument to the effect that the reference to 'a person' in s 13 and s 14 of the SLA should be construed as a reference to a person having statutory authority to sell. This argument was dismissed by the Court of Appeal. The Walkers contend that this argument raised substantial issues regarding the history of s 20(1) of the Town Planning and Development Act 1928 (WA), and decisions interpreting that section, and that these issues gave rise to a significant and discernible portion of the costs of presenting the appeal.
6 The Seller resists this submission on the basis that the contention would not have been raised had an appeal not been instituted, that it was not a matter resolved by the trial judge, and that the ground was arguable.
7 The Walkers' submissions on this issue should not be accepted.
8 The issue at the heart of these proceedings was the proper construction of s 13 and s 14 of the SLA. In that sense, the argument put by the Seller regarding a possible construction of those sections, was not truly a discrete and severable issue from that put by the appellants. On the construction issue, viewed more broadly, the Walkers failed. In any case, if this ground can be characterised a discrete and severable issue, the Seller should nevertheless not be disentitled from having its costs as the issue did not add to the costs of the appeal in a significant and readily discernible way. The legislative history, and the proper construction of s 13 and s 14 of the SLA were put in issue generally by the Walkers' claim and their appeal, and the contention of the Seller which failed did not have a significant impact upon the length of the argument or submissions.
9 The ability to award only a proportion of costs to a partially successful party is one method by which courts can properly encourage parties to carefully consider and refine the matters that they put in issue in litigation: Commissioner of Australian Federal Police v Razzi (1991) 30 FCR 64. However, this consideration must be balanced against the risk that justice may not be served if parties are dissuaded from properly
(Page 6)
- raising arguable submissions due to the spectre of adverse costs implications if unsuccessful: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261.
10 The submission raised was arguable and therefore properly raised in response to the appeal instituted by the appellants. It did not add to the costs of the appeal in a significant and readily discernible way. There is therefore no reason why the costs recovered by the Seller should be reduced to reflect its lack of success on this particular aspect of the argument advanced on appeal.
11 Secondly, it is said by the Walkers that the course of reasoning adopted by the learned trial judge in relation to the ambit of s 14 of the SLA was that contended for by the Seller at trial and that, although the Seller was ultimately successful on appeal, the Court of Appeal rejected the trial judge's reasoning on that issue. Specifically, it is said that the Seller submitted at trial, and the trial judge accepted, that s 14 of the SLA should be construed as only applying to the sale of lots under 'terms contracts'. The expression 'terms contract' is defined in s 5 of the SLA as being:
[A]n executory contract for the sale and purchase of land under which the purchaser is -
(a) obliged to make two or more payments to the vendor…before he is entitled to conveyance or transfer of the land; or
(b) entitled to possession or occupation of the land before he becomes entitled to a conveyance or transfer of the land…'
12 The Seller submits that the reasons given by the trial judge differed materially from the submissions put by the Seller. Specifically, it is said that the Seller's submission at trial was not that s 14 of the SLA should be construed as applying only to the sale of lots by 'terms contracts'. Rather, it is said that the submission put by the Seller was that s 14 applies only where the purchaser goes into possession or becomes entitled to occupation whilst a mortgage continues to exist over that lot.
13 The Seller also submits that the trial judge did not hold that s 14 should be construed as applying to all 'terms contracts'. This is said to be because his Honour maintained a distinction between the two limbs of the definition outlined above and held that the section applied only to the second of those limbs.
(Page 7)
14 Finally, the Seller submits that the argument in the notice of contention was advanced as a matter of caution to ensure that the argument advanced below remained before the Court of Appeal.
15 The Walkers' argument on this point should be rejected.
16 The Seller's submissions at trial were put on the basis that the prohibition in s 14 was 'concerned with a situation prior to the transfer of title to the land to the purchaser, where the purchaser has gone into possession or has a right of occupation (and consequently has an entitlement to rents and profits)': par 39 of the defendant's Outline of Submissions dated 2 October 2009. The same argument was put on appeal: page 43 White Appeal Book.
17 The Sellers' submissions did discuss the notion of a 'terms contract' and observed that, to some extent, the construction argued for was consistent with the second limb of the definition. However, it is clear that the Seller did not submit that the prohibition in s 14 should only apply to any contract falling within either limb of the definition of terms contracts above.
18 By contrast, the Court of Appeal held that the trial judge had concluded that s 14 of the SLA should only apply to 'terms contracts' as defined by the SLA: Walker v Clough Property Claremont [94]. The Seller did not contend on appeal that the decision of the trial judge should be upheld for the reason his Honour gave, but reiterated the construction of s 14 which it had pressed at first instance. The construction adopted by the trial judge cannot therefore be attributed to the Seller, and provides no basis for adjusting the usual order as to costs.
Conclusion and Orders
19 The appellant has failed to provide good reasons why the court should exercise its discretion to discount the costs which should otherwise be recoverable by the Seller. As a result, the orders of the court will be that the appellants pay the Seller's costs of the appeal, including any reserved costs, to be taxed if not agreed.
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