GODWIN -v- KEET [2026] WASC 105 (S)

[2026] WASC 105 (S) Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : GODWIN -v- KEET [2026] WASC 105 (S) CORAM : LUNDBERG J HEARD : ON THE PAPERS DELIVERED : 24 APRIL 2026 FILE NO/S : GDA 18 of 2025 BETWEEN : LAURAINE GODWIN Appellant AND PAUL KEET Respondent FILE NO/S : GDA 2 of 2026 BETWEEN : LAURAINE GODWIN Appellant AND PAUL KEET Respondent -- 1 of 7 -- [2026] WASC 105 (S) Page 2 ON APPEAL FROM: For File No : GDA 18 of 2025 and GDA 2 of 2026 Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL Coram : MS R PETRUCCI, MEMBER File Number : CC 907 of 2024 Catchwords: Costs - Dismissal of appeals brought against decisions of the State Administrative Tribunal - Original proceedings brought pursuant to the Strata Titles Act 2005 (WA) - Exercise of the costs discretion - Relevance of the impecuniosity of the unsuccessful appellant - Turns on own facts Legislation: Rules of the Supreme Court 1971 (WA), O 66 Supreme Court Act 1935 (WA), s 37 Result: The appellant is to pay the respondent's costs in both appeals. Category: B Representation: GDA 18 of 2025 Counsel: Appellant : No Appearance Respondent : No Appearance Solicitors: Appellant : In Person Respondent : Douglas Lawyers -- 2 of 7 -- [2026] WASC 105 (S) Page 3 GDA 2 of 2026 Counsel: Appellant : No appearance Respondent : No Appearance Solicitors: Appellant : In Person Respondent : Douglas Lawyers Case(s) referred to in decision(s): Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333 Dunne v Lloyd [No 4] [2025] WASCA 168 Frigger v Lean [2012] WASCA 66 Naidoo v Williamson [2008] WASCA 179 Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 Oshlack v Richmond River Council (1998) 193 CLR 72 Smolarek v Roper [2009] WASCA 124 (S) -- 3 of 7 -- [2026] WASC 105 (S) LUNDBERG J Page 4 LUNDBERG J: 1 On 2 April 2026, the court dismissed two appeals which had been brought by the appellant against decisions of the Tribunal.1 The first appeal, GDA 18 of 2025, was against the dismissal by the Tribunal of the appellant's application brought under s 47(3) of ST Act seeking the enforcement of the scheme by-laws. The second appeal, GDA 2 of 2026, was against the costs order made by the Tribunal in favour of the respondent. 2 As explained in the reasons published on 2 April 2026, I concluded that none of the many grounds of appeal had reasonable prospects of success. See [149] and [150] in particular. 3 Consequent upon the dismissal of the appeals, the respondent sought an order in both appeals that the appellant pay the respondent's costs of the appeals to be assessed, if not agreed. The respondent relies on the principle that the usual order is that costs follow the event and, while costs are discretionary, there is no reason according to the respondent to depart from the usual order. 4 These orders were strongly opposed by the appellant. The appellant provided to the court an email on 2 April 2026 which made clear her views regarding the strata manager and her concerns as to the unjust nature of the result in this matter. The appellant also filed short written submissions which sought to challenge or comment on the primary decision of the court, which I can largely put to one side save for one point. 5 The appellant submits that she is not in a position to pay any costs order as she is on a pension and after payment of her mortgage, 'there is very little left for anything else'. The appellant also asserts that she is owed a substantial sum by the strata company.2 6 The court has a wide discretion to award costs, pursuant to the power in s 37(1) of the Supreme Court Act 1935 (WA).3 Costs are awarded by way of indemnity - that is, to provide the successful party 1 Definitions employed in the primary reasons have also been used in these reasons. 2 Appellant's submissions dated 6 April 2026, [6]. 3 For completeness, I note that the statutory provisions as to costs in the SAT Act do not have application to the costs of an appeal to this court: s 87, s 88 and s 89 of the SAT Act. -- 4 of 7 -- [2026] WASC 105 (S) LUNDBERG J Page 5 to legal proceedings with a measure of indemnity against the expense of professional legal costs actually incurred in the proceedings.4 7 The discretion regarding costs has been described as 'absolute, unconfined or unfettered although a discretion that must be exercised judicially, not arbitrarily or capriciously, or on grounds unconnected with the litigation'.5 The discretion is to be exercised such that the legislative intention is not frustrated.6 8 The usual rule as to costs is that costs are to follow the event, such that the successful party to an action or proceeding is entitled to recover their costs: see RSC O 66 r 1(1). This is because ordinarily it is just that the party who turns out to have unjustifiably brought the other party before the court should be required to pay the other party's costs.7 9 Where appropriate, there can be departures from this rule. 10 In my view, the appellant has not pointed to any matter which would justify a departure from the usual rule that the successful party on an appeal be entitled to a costs order in his or her favour, or to reduce the costs which might otherwise be awarded to the respondent. The respondent was put to the expense in both matters of instructing solicitors to resist the appeals, and to respond to the wide-ranging grounds of appeal. The issues raised by the appeal proceedings did not give rise to any broader points of public interest or concern – the appeals addressed matters specific to the private interests of the parties to the proceedings. Further, the appellant achieved no measure of success on the appeal. 11 I recognise the appellant has also asserted she is impecunious. No evidence has been adduced to support that assertion. Even assuming, for present purposes, that this assertion can be verified by evidence, it would nonetheless not assist the appellant's position as to costs. I say that because, in general terms, the impecuniosity of an unsuccessful party is not, without more, a sufficient reason to deny a successful party an order for its costs of the litigation, particularly where it has been wholly successful. 4 Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333 [33] (Kiefel CJ, Bell, Keane and Gordon JJ); [60] (Gageler J). 5 Frigger v Lean [2012] WASCA 66 [53] (Allanson J, Newnes and Murphy JJA); Naidoo v Williamson [2008] WASCA 179 [39] (Steytler P). 6 Oshlack v Richmond River Council (1998) 193 CLR 72 [134] (Kirby J) 7 Smolarek v Roper [2009] WASCA 124 (S) [3] (Wheeler and Pullin JJA, Newnes AJA). -- 5 of 7 -- [2026] WASC 105 (S) LUNDBERG J Page 6 12 In Northern Territory v Sangare,8 the High Court addressed this particular issue. The court held that, in the exercise of the judicial discretion as to costs at the conclusion of litigation, the impecuniosity of an unsuccessful party, without more, is not a consideration that justifies denying the successful party its costs. Further, the court held that this consideration is not relevant to the proper exercise of the court's discretion as to costs. At [32], the court observed: Whether a party is rich or poor has, generally speaking, no relevant connection with the litigation. It may be said, by way of qualification to that general proposition, that a party's financial position may be relevant to the extent that it may inform the structure of a costs order. For example, impecuniosity may justify providing for the payment of costs over time in order to avoid inflicting unnecessary hardship while at the same time improving the likelihood of compliance with the order. That said, any such qualification was not invoked in the present case. (footnotes omitted) 13 The above position may be modified where the costs discretion is subject to specific statutory provisions. See, for example, Dunne v Lloyd [No 4],9 in the context of s 237 of the Family Court Act 1997 (WA). There is no specific provision applicable in the present case which would modify the general law approach expressed in Northern Territory v Sangare. 14 Accordingly, for the foregoing reasons, I will order that the appellant pay the respondent's costs of the appeal in each matter, to be assessed if not agreed. I will further order that the costs be assessed under item 26 of the Legal Profession (Supreme and District Courts) (Contentious Business) Costs Determination 2024 (WA). 8 Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [26] – [33] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ), referring specifically to the position in Western Australia as expressed by the Court of Appeal in Smolarek v Roper [11]. 9 Dunne v Lloyd [No 4] [2025] WASCA 168 [21] – [25] (Quinlan CJ), [26] (Thomson P), and [28] (Hall JA). -- 6 of 7 -- [2026] WASC 105 (S) LUNDBERG J Page 7 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IR Associate to the Hon Justice Lundberg 24 APRIL 2026 -- 7 of 7 --