Glendinning v Cuzens

[2009] WASCA 21 (S)

GLENDINNING -v- CUZENS [2009] WASCA 21 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASCA 21 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:34/2008	Heard:	8 OCTOBER 2008 & ON THE PAPERS
Coram:	PULLIN JA NEWNES JA	Delivered:	22/01/09
Supplementary Delivered:	3/07/09
No of pages:	6	Judgment Part:	1 of 1
Result:	Appellant to pay respondents' costs below Respondents to pay appellant's costs of appeal
Category:	B
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Parties:	HEATHER GLENDINNING HARLEY STEWART FRANKLYN CUZENS LESLEY FRANCES CUZENS FRANKLYN WILLIAM CUZENS
Catchwords:	Costs Late concession as to inadequacy of indorsement of claim by appellant in court below Appellant to bear costs below Costs of appeal should follow event No disentitling conduct of appellant shown Turns on own facts
Legislation:	Nil
Case References:	Glendinning v Cuzens [2009] WASCA 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GLENDINNING -v- CUZENS [2009] WASCA 21 (S) CORAM : PULLIN JA

NEWNES JA

HEARD : 8 OCTOBER 2008 & ON THE PAPERS DELIVERED : 23 JANUARY 2009 SUPPLEMENTARY
DECISION : 3 JULY 2009 FILE NO/S : CACV 34 of 2008 BETWEEN : HEATHER GLENDINNING

Appellant

AND

HARLEY STEWART FRANKLYN CUZENS
First Respondent

LESLEY FRANCES CUZENS
Second Respondent

FRANKLYN WILLIAM CUZENS
Third Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

File No : CIV 1182 of 2007

(Page 2)

Catchwords:

Costs - Late concession as to inadequacy of indorsement of claim by appellant in court below - Appellant to bear costs below - Costs of appeal should follow event - No disentitling conduct of appellant shown - Turns on own facts

Legislation:

Nil

Result:

Appellant to pay respondents' costs below

Respondents to pay appellant's costs of appeal

Category: B

Representation:

Counsel:

Appellant : No appearance
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance

Solicitors:

Appellant : Butcher Paull & Calder
First Respondent : In person
Second Respondent : McCallum Donovan Sweeney
Third Respondent : McCallum Donovan Sweeney

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

Glendinning v Cuzens [2009] WASCA 21


(Page 3)

1 JUDGMENT OF THE COURT: On 23 January 2009, this court granted leave to appeal and allowed an appeal against a decision of Master Sanderson setting aside the appellant's amended writ of summons: Glendinning v Cuzens [2009] WASCA 21. The orders of the Master were set aside and the appellant was given leave to make an application to this court within 14 days to amend the indorsement on the writ, failing which the writ would be set aside.

2 The appellant duly brought such an application and, on 15 May 2009, this court granted leave to amend the indorsement, reserving to the trial judge the date upon which the amendment is to take effect. The appellant was ordered to pay the costs of that application.

3 The court ordered that the question of costs was otherwise to be decided on the papers and directions were made for the filing and service of written submissions. The written submissions on costs have been filed and served and the costs of the appeal and below now fall for determination.

Background

4 The relevant facts are set out in the judgment delivered on 23 January 2009. They can be sufficiently summarised for present purposes as follows. The appellant issued a writ of summons on 23 February 2007 with an indorsement of claim. At that stage the appellant was unrepresented. The indorsement was amended without leave on 22 June 2007. At that stage the appellant was apparently represented by her current solicitors.

5 On 13 November 2007, the writ was served on the second and third respondents, who entered a conditional appearance. Their solicitors subsequently wrote to the appellant's solicitors contending that the indorsement on the writ was defective. The appellant's solicitors did not take any steps to amend the indorsement and, on 7 December 2007, the second and third respondents applied for an order that the writ be set aside, alternatively the indorsement be struck out, and alternatively that the amended indorsement be struck out.

6 Orders were made by consent on 20 December 2007 that the application be heard at a special appointment and directions made for the filing and service of outlines of submissions and lists of authorities. The respondents complied with the directions but, despite promptings by the respondents' solicitors, the appellant did not. When the matter came on for hearing at the special appointment on 6 March 2008, no affidavit

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evidence or submissions had been filed by the appellant. At the outset of the hearing, counsel for the appellant conceded the indorsement was deficient and sought 21 days to file a further minute of amended indorsement. At that stage no proposed amended indorsement was proffered. The Master declined to allow further time and ordered that the amended writ of summons be set aside.

7 As we have mentioned above, the decision of the Master was set aside by this court and the appellant was subsequently granted leave to amend the indorsement on the writ.

The respondents' submissions

8 The respondents seek an order that the appellant pay their costs of the application before Master Sanderson and their costs of the appeal. They argue that, having failed to acknowledge that the indorsement was defective until the hearing before Master Sanderson, it is just that the appellant bears the costs of that application. It was submitted that even had Master Sanderson made the substantive orders ultimately made by this court, the appellant would have had to bear the costs of the application.

9 It was submitted in relation to the costs of the appeal that, as on the application before Master Sanderson, the appellant did not proffer any minute of proposed amended indorsement but simply sought unconditional leave to amend at large. It did not obtain that relief. While ultimately the appellant obtained leave to amend the indorsement it was subject to a condition to preserve the respondents' rights in relation to any limitation issue. The respondents therefore acted reasonably in opposing the appeal on the basis it was brought. They argued that it was the unsatisfactory conduct of the appellant throughout that materially contributed to the necessity for the appeal.

The appellant's submissions

10 It was submitted on behalf of the appellant that although there was delay on the part of the appellant in conceding that the indorsement was defective, the respondents sought to have the writ set aside and maintained that position throughout. It was never suggested by the respondents that if an acceptable amended indorsement was put forward they would change their position. The effect of the decision of this court is that the appellant should have been given an opportunity to amend the indorsement. But for the approach the respondents took, the appeal would have been unnecessary. Accordingly, the appellant should have the costs

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of the appeal. The costs of the application before Master Sanderson should be the respondents' costs in any event.

Decision on the costs of the primary application

11 It is quite clear that the appellant must bear the respondents' costs of the application before Master Sanderson, given that the concession as to the inadequacy of the indorsement of claim was made only when the application came on for hearing. We would not accede to the submission by the appellant that those costs should be payable in any event. Nor would we interfere with the amount of $2,000 assessed by the Master. We would order that the appellant pay the respondents' costs of the application, fixed in the sum of $2,000.

Decision on the costs of the appeal

12 That leaves the question of the costs of the appeal. An order for costs is compensatory in nature and the general rule is that a successful party is entitled to their costs. While a successful party may be deprived of their costs in special circumstances, we are not satisfied that such circumstances exist in the present case.

13 It is the case that on the hearing of the appeal (as below) the appellant did not put forward any proposed amended indorsement of claim. The absence on the hearing of the appeal of an acceptable proposed indorsement did not, however, involve the respondents in any additional costs or otherwise cause them any prejudice. The respondents' position was that the order of the Master setting aside the writ should be upheld, so that no question of the terms of any proposed amended indorsement arose. After the appeal was upheld, the appellant was required to make, and made, an application for leave to amend the indorsement and that application was granted, subject to the reservation as to the date upon which it took effect. The respondents have already obtained from this court an order that the appellant pay their costs of that application.

14 We do not accept the respondents' submission that the conduct of the appellant leading up to the special appointment before Master Sanderson is a relevant consideration in determining where the costs of the appeal should lie. While that conduct was relevant to the costs of the original application, it did not bear in any material sense upon the costs of the appeal. At first instance, the respondents overreached in seeking an order setting aside the writ. On the appeal, the respondents opposed that order being overturned and did not accept that the appellant should have any

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further opportunity to amend the indorsement. The respondents having failed on the appeal, the costs should follow the event.

15 We would therefore order:

1. the appellant pay the respondents' costs of the application before Master Sanderson, fixed at $2,000; and

2. the respondents pay the appellant's costs of the appeal to be taxed.