Woodley v Woodley - [2018] WASCA 200

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WOODLEY -v- WOODLEY [2018] WASCA 200
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   8 NOVEMBER 2018
DELIVERED          :   8 NOVEMBER 2018
PUBLISHED           :   9 NOVEMBER 2018
FILE NO/S:   CACV 100 of 2018
BETWEEN:   TERRY RAY WOODLEY
Appellant

AND

ROSS MAXWELL WOODLEY
First Respondent

ROSS MAXWELL WOODLEY as executor of the estate of SHIRLEY GRACE MAY WOODLEY
RAYMOND THOMAS WOODLEY as executor of the estate of SHIRLEY GRACE MAY WOODLEY
Second Respondents

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ALLANSON J
Citation: WOODLEY -v- WOODLEY [No 5] [2018] WASC 311
File Number             :   CIV 2080 of 2013

Catchwords:

Appeal - Practice and procedure - Application for a stay of orders of trial court - Turns on own facts

Legislation:

Nil

Result:

Application for a stay dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
First Respondent	:	Mr P G Donovan & Ms H J Burnside
Second Respondents	:	No Appearance

Solicitors:

Appellant	:	In Person
First Respondent	:	MDS Legal
Second Respondents	:	No Appearance

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

Apache Northwest Pty Ltd v Agostini [2009] WASCA 147
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Maio v City of Stirling [2015] WASCA 254
Mercanti v Mercanti [2015] WASCA 206
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Saunders v Public Trustee [2015] WASCA 203
Woodley v Woodley [No 2] [2015] WASC 274

REASONS OF THE COURT:

Summary

On 19 October 2018, the trial judge delivered judgment[1] in the primary proceedings, which concern the proceeds of sale of farming land in Waroona (Coronation Road property).
[1] Woodley v Woodley [No 5] [2018] WASC 311 (Primary Decision).
The first respondent (Ross)[2] was the registered proprietor of the land at the time of sale. The proceeds of the sale (which are currently held in a trust account of Ross' solicitors) amount to about $817,000. In the primary proceedings, the appellant (Terry) claimed that, prior to its sale, Ross held the Coronation Road property on trust for Terry. Terry sought declaratory relief and an order that the proceeds of the sale of the Coronation Road property be paid to him.
[2] As has been the usual practice when dealing with litigation between the members of the Woodley family, we will refer to family members by their first names, without intending any disrespect.
The trial judge entered judgment for Ross, dismissed Terry's claim and ordered that the proceeds of the sale of the Coronation Road property be released to Ross. Terry was ordered to pay Ross' costs of the proceedings up to 2 August 2017 on a party/party basis, and Ross' costs incurred on or after 2 August 2017 on an indemnity basis.
On 19 October 2018, Terry instituted an appeal against the trial judge's decision. By an application in an appeal filed on 25 October 2018, Terry seeks a stay of both the order that the sale proceeds be released to Ross and the costs orders.
At the conclusion of the hearing of Terry's application for stays, we dismissed the application. Our reasons for dismissing the application are set out below.

Background facts found by the trial judge

The following background facts were found by the trial judge.
Terry is the youngest of the five children of Thomas and Shirley Woodley (both now deceased). Ross is the oldest child.[3]
[3] Primary Decision [1].
From approximately February 1966 until approximately October 1977, Thomas, Shirley and Ross carried on a farming partnership known as TR & SGM & RM Woodley trading as Kongorong Farm. Ross was born in December 1949, so was only 16 at the inception of the partnership.[4]
[4] Primary Decision [67].
From about 1968, Thomas, Shirley and Ross were the registered proprietors, as joint tenants, of the Coronation Road property. The partnership acquired the property and used it, with other properties, as part of the farming operations of the partnership.[5]
[5] Primary Decision [2], [68].
Two of the properties used in the partnership were sold to Alcoa of Australia (WA) Limited in July 1977. Cash from the sales of the two properties was distributed when the partnership was wound up, later in 1977.[6]
[6] Primary Decision [69] - [70].
After the sale of land to Alcoa, the partnership had two remaining parcels of real property: the Coronation Road property, and a farming property known as the Camarri property.[7]
[7] Primary Decision [72].
In November 1978, the Camarri property was transferred to Ross. The transfer recites that the property had been held in trust for him. There is no other documentary evidence of the trust.[8]
[8] Primary Decision [73].
Ross remained on the title to the Coronation Road property as joint tenant with Thomas and Shirley.[9]
[9] Primary Decision [74].
Thomas and Shirley retained occupation and use of the Coronation Road property for the purpose of their farming business, while Ross had both the title to and possession and use of the Camarri property.[10]
[10] Primary Decision [82].
On three occasions following the dissolution of the partnership, in 1988, 1994, and 2001, Ross borrowed money using the Coronation Road property as security. On each occasion, Thomas and Shirley signed the relevant security documents as joint tenants with Ross, acknowledging his title as joint tenant.[11]
[11] Primary Decision [84].
Thomas died in January 2010. His entire estate was left to Shirley. She was also the executor of his will.[12]
[12] Primary Decision [3], [87].
Following the death of Thomas, Shirley was represented by the firm of solicitors, Nicholson Clement. Relevantly, through Nicholson Clement, she applied for probate of Thomas' will. Survivorship applications for the Coronation Road property (jointly with Ross) and another property were prepared.[13]
[13] Primary Decision [88].
In May 2010, Shirley transferred her interest in the Coronation Road property, described on the transfer as a half share, to Ross. Ross' title as sole proprietor was registered on 20 October 2010.[14]
[14] Primary Decision [4], [91].
Shirley died in July 2011.[15]
[15] Primary Decision [5].
In February 2013, Terry lodged a caveat over the Coronation Road property. In April 2013, Ross sold the Coronation Road property, and the proceeds of sale have been held in trust awaiting the outcome of the primary proceedings.[16]
[16] Primary Decision [6].
Terry commenced the primary proceedings by writ filed on 9 July 2013.[17]
[17] Primary Decision [7].

Terry's claim in respect of the Coronation Road property

The trial judge summarised Terry's claim to the following effect.[18]
[18] Primary Decision [50] - [52].
Terry alleged that there was a verbal agreement between Thomas, Shirley and Ross in or about 1977, following the dissolution of the partnership under which:
(1)Ross was to regard the Camarri property as his and enjoy quiet possession and ownership thereof; and
(2)Thomas and Shirley were to regard the Coronation Road property as theirs and enjoy quiet possession and ownership thereof to the exclusion of Ross.
From approximately 1992 until 2010 Thomas and Shirley 'regularly and on numerous occasions told Terry that the Coronation Road property would be his, when they passed away'.
From 1992 to 2010, Terry contributed his labour and made financial contributions to maintaining and improving the Coronation Road property. With Thomas' and Shirley's encouragement, Terry acquired a nearby farm to be used in conjunction with the Coronation Road property.
When Shirley transferred or purported to transfer '50% of her interest in the Coronation Road property' to Ross in May 2010, she was in ill health, was 'often dazed or confused' and made incoherent or illogical statements.
From 1992, Ross was aware or had constructive knowledge of Terry's contributions, that Ross no longer held an entitlement to claim an interest in the Coronation Road property, that Thomas and Shirley had told Terry that Terry would inherit the property, and that Terry had contributed to the property.
Based on those allegations, Terry asserted that the joint tenancy between Thomas, Shirley and Ross was severed. Terry claimed an equitable interest in the Coronation Road property up to the death of Shirley and the legal and beneficial ownership of the whole of the property from her death. Alternatively, he claimed a proportion of the sale proceeds of the Coronation Road property to reflect his estate or interest.
Terry also asserted that Ross 'committed fraud on Shirley Woodley by creating a false belief as to the true nature of the transfer and surrounding events'.

Trial judge's approach

Assessment of Terry's evidence

The trial judge accepted a number of adverse observations which counsel for Ross made about Terry's evidence.[19] The trial judge said:[20]
I do not believe that I should reject Terry's evidence unless it is corroborated in some way. But it needs to be looked at carefully, and on some critical issues, I have been unable to accept his evidence and my general unfavourable view of his credibility has contributed to those findings.

Issues for determination

[19] Primary Decision [43].

[20] Primary Decision [44].

The trial judge recognised that Terry needed to both establish his interest in the Coronation Road property by reason of his claim in estoppel, and to defeat the interest of Ross. The trial judge identified the following critical issues:
(1)Following the dissolution of the partnership with his parents, did Ross hold his interest as joint tenant in the Coronation Road property in trust for his parents?
(2)Did Ross and Shirley make promises or representations to Terry that, on their death, the Coronation Road property would be his?
(3)Did Ross obtain title as registered proprietor of the Coronation Road property in 2010 by fraud on Shirley?

Whether Ross held his interest on trust for his parents

The trial judge noted that Terry's claim, based on his parents' alleged promise that the Coronation Road property would be his on their death, was faced with the obstacle that, during his parents' lives, Ross was a joint tenant of the property. Unless the joint tenancy was severed during their lifetimes, Shirley and Thomas did not have an interest that could be transmitted by will.[21]
[21] Primary Decision [8].
Terry's claim that Ross held his interest in the Coronation Road property on trust for Thomas and Shirley was based on an alleged oral agreement between those parties. There was no direct evidence of such an agreement, or its terms. Terry contended that an oral agreement was to be inferred from the subsequent conduct of the parties.[22]
[22] Primary Decision [72], [78].
The trial judge accepted that the agreement, if established, would have the effect of severing the joint tenancy between Thomas, Shirley and Ross. However, his Honour was not satisfied that there was such an agreement. The only evidence of such an agreement was the subsequent conduct which was equivocal.[23] The trial judge observed:[24]
Joint owners do not have to jointly occupy the land, so long as each remains entitled to possession of the whole, along with any other co‑owner who chooses to occupy it. The fact that Ross did not remain in occupation does not demonstrate that he had surrendered, by contract, his right to possession.
At best, for [Terry's] case, the parties' conduct shows an agreement by which, following the dissolution of the partnership, Thomas and Shirley retained occupation and use of the Coronation Road property for the purpose of their farming business, while Ross had both the title to and possession and use of Camarri. It does not show that the parties, by agreement had severed the joint tenancy in the Coronation Road property.
[23] Primary Decision [79].
[24] Primary Decision [81] - [82].
The trial judge also accepted evidence of the security transactions referred to at [15] above, and Ross' evidence as to an agreement with his parents, as showing a continuation of the joint tenancy.[25]
[25] Primary Decision [83] - [85].
The trial judge declined Terry's invitation to draw any inference from the existence of a draft unsigned statutory declaration of Shirley on her former solicitors' file. His Honour noted that Shirley and Ross jointly signed a survivorship application for the Coronation Road property. In the statutory declaration in support of the application, they described themselves as co-registered proprietors with Thomas.[26]

Whether the Coronation Road property was promised to Terry

[26] Primary Decision [89].

The trial judge did not accept that Thomas and Shirley told Terry that the Coronation Road property would be his when they passed away. Terry's contentions were largely based on Thomas saying to him '[y]ou only get out of something what you put into it.' Terry's evidence was that he understood this to mean that, if he continued to contribute to the property, he would get the property.[27]
[27] Primary Decision [97] - [98].
The trial judge accepted Terry's evidence that Thomas told him 'you get out of it what you put into it'. His Honour was not satisfied of what other words were said, or that what was said would reasonably bear the construction that Terry sought to put on it.[28]
[28] Primary Decision [104].
The trial judge also found Terry's case that his parents promised the Coronation Road property to him on their death to be seriously weakened by the following matters:
(1)Terry was aware of the terms of his parents' wills from when they made their wills in 1997 and knew that the Coronation Road property was not left to him in either will.[29]
(2)Aware that the wills did not leave the Coronation Road property to him, Terry said and did nothing. His explanation for his inaction was not consistent with his assertion that he knew that the property had been clearly promised to him.[30]
(3)Terry only asserted that his parents had promised him the farm for the first time in February 2013, as the basis for supporting a caveat on the Coronation Road property. That was despite there being a number of occasions on which it would be expected that he would have mentioned the promise if it had been made.[31]
[29] Primary Decision [106].
[30] Primary Decision [107] - [108].
[31] Primary Decision [109] - [115].
The trial judge had regard to his overall impression from Terry's evidence:[32]
(1)Terry repeatedly and incorrectly sought to attribute responsibility for his failure to be prepared for trial and for omissions in his witness statement to his former solicitors.
(2)There were several occasions where Terry testified to what he believed must have happened, when he had no actual knowledge of the facts.
(3)Terry repeatedly threatened using legal action to delay the finalisation of the estate.
(4)Terry repeatedly demonstrated his animosity to his brothers.
(5)In April 2018, Terry lodged caveats against three other properties in Waroona, previously owned by his parents, again on the basis that they were promised to him. When asked why he had not acted earlier, despite having participated in two Supreme Court trials, he simply said the penny did not drop earlier. There was no evidence that Terry had previously claimed those properties.
[32] Primary Decision [116] - [122].
The trial judge recognised that, on the above findings, it was unnecessary to consider in any detail the other elements of a claim in proprietary estoppel. That was because the claim was based on representations or promises which had not been proved.[33]

Fraud

[33] Primary Decision [123].

The trial judge found that Terry's fraud case was never properly stated, and was not supported by cogent evidence.[34]
[34] Primary Decision [124] - [149].
The trial judge referred to a document which began 'I Shirley Woodley', as the principal evidence on which Terry relied to support his fraud allegation.[35] The trial judge found that the document was prepared by another brother, Wayne Woodley, discussed with Ross and that Shirley was not aware of the document.[36] Those conclusions were based on his acceptance of Ross' and Wayne's evidence, and meant that the document was not capable of supporting Terry's allegation of fraud. Other matters to which Terry referred also did not prove fraud.[37]

Trial judge's conclusion

[35] Primary Decision [133] - [134].

[36] Primary Decision [136] - [142].

[37] Primary Decision [144] - [145].

The trial judge said that the above findings were sufficient to determine Terry's claim that he has an interest in the Coronation Road property. His Honour dealt briefly with other claims made by Terry, and said that the action would be dismissed.[38]

Costs

[38] Primary Decision [151] - [161].

The trial judge considered an order for indemnity costs to be appropriate from 2 August 2017, essentially for the following reasons. The trial judge concluded that Terry ought to have appreciated that his case was hopeless when preparing for trial, at the latest. He alleged fraud against Ross with no support in the evidence. It was appropriate to mark the disapproval of the court to Terry's conduct leading up to the trial, which involved a failure to comply with pre-trial orders. Further, there was correspondence which reinforced an inference of ulterior motive or wilful disregard of known facts which might be drawn from the weakness of Terry's case.[39]
[39] Trial ts 1084 - 1088.

Application for a stay: general principles

The general principles governing the grant of a stay or suspension order by this court pending an appeal are not in dispute, and were summarised by the court in Eastland Technology Australia Pty Ltd v Whisson,[40] in the following terms:
• The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
• It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
• It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
• The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
• If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
• If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
[40] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
It is established that whether an applicant for a stay or injunction has demonstrated sufficient prospects of success and whether the balance of convenience favours the grant of such relief are related, not independent, questions.[41]
[41] See Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87]; Mercanti v Mercanti [2015] WASCA 206 [16]; Maio v City of Stirling [2015] WASCA 254 [44]; Apache Northwest Pty Ltd v Agostini [2009] WASCA 147 [10].

Evidence on the stay application

Terry has filed two affidavits in support of his application for a stay, sworn 24 October 2018 and 1 November 2018. Much of the material contained in those affidavits is irrelevant to the question of whether a stay ought to be granted.

In general terms, Terry invites the court to draw an inference from Ross' past statements as to his assets and legal expenses that Ross must have substantial debts. Terry invites the court to infer that, if the proceeds of the sale of the Coronation Road property are paid to Ross, then it will be used to discharge those debts. Terry invites the inference that his prospects of recovering the money from his brother, who is 69 years old, retired and in ill-health, would be remote. Terry also alleges that Ross has failed to pay a debt that Ross owes to Shirley's estate.
Terry also gives a 'by no means conclusive' summary of his proposed grounds of appeal, to which we will return.[42]
[42] Affidavit of Terry Ray Woodley sworn 24 October 2018, par 3 - 11.
Ross relies on an affidavit of Helen Jennifer Burnside sworn 25 October 2018 in opposition to the stay application. She deposes as to her belief, based on information received from Ross, that he is a retired 69‑year‑old suffering from significant medical conditions who has found ongoing litigation in the matter to be a source of considerable stress. She deposes to Ross having assets in excess of his liabilities, and to Ross' entitlement to be paid legal costs of other proceedings in which Terry was unsuccessful and ordered to pay costs which have not yet been taxed or agreed. She deposes that Ross believes that he has paid his debt to Shirley's estate. Her affidavit annexes an extract of a witness statement tendered in the primary proceedings where Ross states that he has paid various debts on behalf of Shirley's estate that he considers he is entitled to set off against the debt he owes to his parents.[43]
[43] Affidavit of Helen Jennifer Burnside sworn 25 October 2018, par 7; annexure HJB-1.

Disposition

It is unnecessary to resolve the question of whether Terry has established that the appeal against the dismissal of his claim will be rendered nugatory if a stay is not granted. Even if it were to be established that the refusal of a stay would have that effect, we are not persuaded that the prospects of success of the appeal against the dismissal of Terry's claim are sufficiently reasonable, when viewed in the context of the balance of convenience, to justify the grant of a stay.
A critical component of Terry's argument at trial was that, after the joint tenancy with Ross had been severed, Shirley and Thomas represented to Terry that the Coronation Road property would be his when they passed away. The appeal against the dismissal of Terry's claim must be dismissed unless error can be shown as to both of the trial judge's conclusions that:
(1)Terry had not established that the representation was made; and
(2)Terry had not established that the joint tenancy with Ross had been severed.
Terry is yet to file an appellant's case but, as noted above, has set out a summary of his proposed grounds. Nothing in the material before us gives us cause to doubt the correctness of either of these conclusions.
Terry contends that the trial judge erred by failing to engage with the evidence as to a number of matters. However, those matters do not appear to be matters which are capable of impugning either of the two conclusions noted above. Because the trial judge found that Terry's claim failed on the facts in the manner described above, it was unnecessary for his Honour to address other elements of the claim in estoppel or consider the authorities dealing with the elements of that cause of action.
Terry specifically relies on a form of transfer of Shirley's half interest in the Coronation Road property to Ross and a stamp duty valuation form, both dated 13 May 2010.[44] He contends that these forms show that the joint tenancy with Ross had been severed by that stage. However, those forms are consistent with each of Shirley and Ross having obtained an equal interest in the Coronation Road property, as the remaining joint tenants, by survivorship following Thomas' death in January 2010.
[44] Affidavit of Terry Ray Woodley sworn 24 October 2018, annexures TRW-3 and TRW-4.
Terry refers to the following observation made by Beech J in the course of refusing an application for further discovery in the primary proceedings:[45]
Although not expressly pleaded, it is necessarily implicit in the statement of claim that by no later than 20 October 2010 a survivorship application relating to the interest of [Thomas] had been lodged, resulting in that interest passing by survivorship to [Shirley] and to [Ross]. As I have said, [Terry] pleads that [Shirley] transferred 50% of her interest in the Coronation Road Property to [Ross]. That does not explain how, as [Terry] pleads, by 20 October 2010 [Ross] was registered proprietor of the entire interest in the Coronation Road Property. However, for present purposes, nothing turns on that.
[45] Woodley v Woodley [No 2] [2015] WASC 274 [9].
Nothing in this passage gives rise to any doubt regarding the correctness of the trial judge's conclusions on the evidence before him, which included evidence of Shirley's transfer of her interest in the Coronation Road property to Ross in May 2010.
In oral submissions, Terry referred to a caveat which Thomas and Shirley placed over the Camarri property and the value of that property. It is difficult to see how evidence of that nature relating to the Camarri property could establish that the joint tenancy of the Coronation Road property had been severed.
Terry also asserted that Thomas and Shirley had not seen the certificate of title for the Coronation Road property. Again, it is difficult to see how that fact, if established, could show that the joint tenancy of the Coronation Road property had been severed.
Terry contends that the trial judge 'fail[ed] to turn his mind to the true nature terms and effect of the promises made by my parents with words such as "You only get out of something what you put into it"'.[46] Those words do not in terms convey a promise to give Terry the Coronation Road property. The trial judge was not prepared to make findings as to the particular context in which the words were spoken, which:
(1)would make it reasonable for Terry to interpret the words as conveying that he would have the Coronation Road property when his parents died; or
(2)would establish that Thomas knew or intended that Terry would understand the words to have that effect.
Further, the trial judge's lack of satisfaction that there was a representation that the Coronation Road property would be transferred to Terry was supported by the other considerations referred to at [39] ‑ [40] above.
[46] Affidavit of Terry Ray Woodley sworn 24 October 2018, par 10.
Terry complains that the trial judge's reasons for decision were inadequate.[47] We can see no basis for that criticism. The judgment explains, with particularity by reference to the identified legal principles and the evidence, the basis of the trial judge's reasons for dismissing Terry's claim.
[47] Affidavit of Terry Ray Woodley sworn 24 October 2018, par 11.
Terry's submissions refer to the prospect of him applying to adduce additional evidence in the appeal, which he seeks to characterise as 'fresh evidence'. The material before this court does not disclose any evidence which was not available to Terry at trial and could not have been discovered with reasonable diligence. Having regard to the limited circumstances in which additional evidence will be admitted in a civil appeal,[48] the material before us does not establish any proper basis on which additional evidence might be admitted or the appeal might be allowed on the basis of fresh evidence.
[48] See Saunders v Public Trustee [2015] WASCA 203 [83] - [90].
Nor does the balance of convenience clearly favour the grant of a stay. It may be assumed that there is a risk that Terry may not be able to recover the proceeds of the sale of the Coronation Road property if they are paid to Ross. However, Ross has been kept out of the proceeds of the sale of his property and has incurred significant debts successfully defending the primary proceedings and other proceedings to date. Those other proceedings have themselves given rise to a significant, albeit yet to be quantified, liability of Terry to pay Ross' costs. Ross' age and health conditions further count against depriving him of the ordinary entitlement to enforce the judgment pending the determination of any appeal. Also counting against the grant of a stay are the statements which Terry has made threatening to use legal proceedings as a delaying tactic.[49]
[49] See Primary Decision [120].
Given what appears at this stage to be the poor prospects of Terry's appeal against the dismissal of his claim and the balance of convenience, we were not satisfied that it was in the interests of justice to stay the trial judge's orders for release of the proceeds of sale of the Coronation Road property to Ross.
As to the costs orders, Terry claims that he was taken by surprise and denied procedural fairness when costs were dealt with at judgment delivery, and the trial judge's finding that he advanced a hopeless case for an improper purpose should not have been made. However, there is no basis for concluding that Terry's appeal against the costs orders would be rendered nugatory if a stay were not granted. If this court were to allow Terry's appeal against the costs orders, the quantum of any reimbursement ordered would be significantly lower than that ordered in respect of the proceeds of the sale of the Coronation Road property. The evidence does not satisfy us that there is sufficient reason to apprehend that Ross would be unable to satisfy such an order for reimbursement. We were not satisfied that a stay of the costs orders was justified in these circumstances.

Costs of the application in an appeal

Ross applied for an order that Terry pay his costs of the application in an appeal. We declined to make that order, and instead ordered that the costs of Terry's application be in the cause of the appeal. This seemed to us to be the more appropriate costs order given the inter‑relationship between the merits of the appeal against the dismissal of Terry's claim and our disposition of his application for a stay.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE MITCHELL
9 NOVEMBER 2018