WAGGA ROAD PROPERTIES PTY LIMITED & ORS v SMITH & ANOR [2008] NSWSC 1410

WAGGA ROAD PROPERTIES PTY LIMITED & ORS v SMITH & ANOR [2008] NSWSC 1410

The owners, having authorised the managers to litigate in the company's name, could not withdraw authority or settle with the builder so as to defeat the managers' beneficial right to the costs order obtained. Such conduct was unconscionable within s 51AA of the Trade Practices Act. On undisputed facts, the Magistrate's decision was correct and the appeal must be dismissed.

Parties
First Plaintiff: Wagga Road Properties Pty Ltd; Second Plaintiff: Margaret Anne Wikramanayake; Third Plaintiff: Prenitha Srimath Wikramanayake; First Defendant: David Smith; Second Defendant: John James
Jurisdiction
Australia
Judgment Date
05 December 2008
Procedural Posture
Civil Appeal / Supreme Court Appeal From Local Court Decision
Outcome
Appeal dismissed
Legal Topics
Authority to Conduct Proceedings, Costs, Unconscionable Conduct, Misleading or Deceptive Conduct
Civil Procedure Equity Commercial Law Authority to Conduct Proceedings Costs Unconscionable Conduct Misleading or Deceptive Conduct

Case Brief

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Parties

Wagga Road Properties Pty Ltd

First Plaintiff

Margaret Anne Wikramanayake

Second Plaintiff

Prenitha Srimath Wikramanayake

Third Plaintiff

David Smith

First Defendant

John James

Second Defendant

Procedural Posture

Civil Appeal / Supreme Court Appeal From Local Court Decision

Legal Issues

  1. 1 Whether authority to conduct proceedings in owner's name included right to recover and enforce costs order
  2. 2 Whether the owner's conduct in settling and giving up the costs order constituted unconscionable or misleading and deceptive conduct under the Trade Practices Act
  3. 3 Whether the Local Court erred in law in its reasoning or outcome

Ratio Decidendi

The owners, having authorised the managers to litigate in the company's name, could not withdraw authority or settle with the builder so as to defeat the managers' beneficial right to the costs order obtained. Such conduct was unconscionable within s 51AA of the Trade Practices Act. On undisputed facts, the Magistrate's decision was correct and the appeal must be dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Plaintiffs to pay defendants' costs, with counsel's fees on the basis of junior's fees