HEMSLEY -v- BEYER [2026] WADC 33 (S)

[2026] WADC 33 (S) [2026] WADC 33 (S) (TZ) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL LOCATION : PERTH CITATION : HEMSLEY -v- BEYER [2026] WADC 33 (S) CORAM : TROY DCJ HEARD : ON THE PAPERS DELIVERED : 7 MAY 2026 FILE NO/S : CIV 5296 of 2024 BETWEEN : JEFFREY ERNEST HEMSLEY First Plaintiff LYNETTE SUSAN HEMSLEY Second Plaintiff AND PETER ERNEST BEYER First Defendant RORI HOLDINGS PTY LTD Second Defendant Catchwords: Costs following appeal from deputy registrar - Turns on own facts -- 1 of 8 -- [2026] WADC 33 (S) [2026] WADC 33 (S) (TZ) Page 2 Legislation: District Court of Western Australia Act 1969 (WA), s 64(1) and s 64(3) District Court Rules 2005 (WA), pt 1 r 6 Rules of the Supreme Court 1971 (WA), O 66 r 1(1) Supreme Court Act 1935 (WA), s 37(1) Result: Costs determined to be in the cause Representation: Counsel: First Plaintiff : Mr P G McGowan Second Plaintiff : Mr P G McGowan First Defendant : Mr A M M McGlue Second Defendant : Mr A M M McGlue Solicitors: First Plaintiff : Rowley Legal Second Plaintiff : Rowley Legal First Defendant : Lavan Second Defendant : Lavan Case(s) referred to in decision(s): Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) Frigger v Lean [2012] WASCA 66 Frigger v Professional Services of Australia Pty Ltd [No 2] [2025] WASC 238 (S) Hemsley v Beyer [2026] WADC 33 Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 316 Natale v Brown as Executor of Estate of Edward Natale [2025] WASC 492 (S) Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394 -- 2 of 8 -- [2026] WADC 33 (S) TROY DCJ [2026] WADC 33 (S) (TZ) Page 3 TROY DCJ: 1 On 20 April 2026, I published my written reasons (the Reasons) for my decision allowing the appeal and granting leave to the plaintiffs to join Hemsley Nominees Pty Ltd as an additional plaintiff.1 I stated that I would hear from the parties as to costs. The parties were unable to agree the question of costs but were content for the matter to be determined on the papers, having filed written submissions on the point. 2 The plaintiffs seek orders that the defendants pay the costs of the plaintiffs of and arising out of: (a) the appeal decision before me; (b) the contested costs application following my decision; and (c) the original application for joinder heard by Deputy Registrar Harman on 10 September 2025.2 3 Such costs to be payable forthwith to be assessed if not agreed. 4 Further, the plaintiffs seek those costs orders assessed as between a law practice and its client from 13 August 2025 onwards and assessed on a party and party basis prior to 13 August 2025. 5 The relevance of 13 August 2025 is that the plaintiffs and the defendants exchanged emails on that date which the plaintiffs contend analogously fit within 'Calderbank principles'.3 6 The defendants contend that costs should be in the cause. The plaintiffs' argument 7 Having filed the statement of claim on 21 December 2024, the plaintiffs then indicated that it proposed to join Hemsley Nominees Pty Ltd on 19 March 2025. 8 The evidence relied upon by both sides on appeal was the same as before Deputy Registrar Harman. 1 Hemsley v Beyer [2026] WADC 33. 2 The deputy registrar had refused joinder at first instance. 3 Natale v Brown as Executor of Estate of Edward Natale [2025] WASC 492 (S) [41] (Natale). -- 3 of 8 -- [2026] WADC 33 (S) TROY DCJ [2026] WADC 33 (S) (TZ) Page 4 9 Having succeeded at first instance, the defendants sought and obtained an order for costs against the plaintiffs in the application. 10 The 13 August 2025 emails disclosed clear warnings that the plaintiffs would seek costs if a disputed application had to be argued. 11 As O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA) (RSC) provides, the court will generally order that the successful party to any action or matter recover his costs. 12 The plaintiffs have succeeded in this appeal, and the general rule should apply. The defendants' argument 13 The broader matter, the subject of the writ of summons, is yet to be determined, so cost orders should be considered on the basis that the appeal was in the nature of an interim application within the same forum. 14 The need for the application and the appeal was of the plaintiffs' own making, in the sense that they could have named their preferred parties from the outset but failed to do so. 15 The defendants rely on the Reasons at [46] where I stated: … the plaintiffs could have included Hemsley Nominees Pty Ltd as a further plaintiff when the writ was issued in December 2024. 16 However, I note that I also said at [48] that: … while it might be said that Hemsley Nominees Pty Ltd ought to have been added from the outset, in that Ms Rowley's clients ought to have advised her from the start of the family cost sharing arrangements, it is a somewhat moot point, in that if Hemsley Nominees Pty Ltd had been joined in December 2024, for the reasons that have been articulated in the hearing before me, the defendants would have contended it had no cause of action, because it is not an owner and cannot therefore subdivide. 17 The plaintiffs applied for the joinder of the additional plaintiff on the basis of a contended arguable claim under s 159 of the Planning and Development Act 2005 (WA). The defendants opposed this joinder, contending that there is no arguable claim. -- 4 of 8 -- [2026] WADC 33 (S) TROY DCJ [2026] WADC 33 (S) (TZ) Page 5 18 The defendants submit that in allowing the appeal, the court held that the appeal was conceptually very similar to a summary judgment application.4 The usual order where an application for summary judgment is dismissed is that the costs of the application are in the cause. It is only in exceptional cases that costs will be awarded to the party who successfully opposed the application.5 19 If the matter proceeds to trial and the additional plaintiff succeeds in its claim, then the plaintiffs should, at that point, fairly be allowed to recover their costs of the application and the appeal. If, however, the matter proceeds to trial and the additional plaintiff is found not to have a valid claim, then it would be unfair for the additional plaintiff to previously have been awarded its costs. 20 Mediation is yet to occur, and it would be undesirable in a case management sense for a taxation of costs to potentially occur prior to the parties attempting mediation. Analysis 21 Section 64(1) of the District Court of Western Australia Act 1969 (WA), (the District Court Act) provides: (1) Except as hereinafter provided in this Act, the costs of any action or proceeding shall be in accordance with any costs determination and shall be paid by or apportioned between the parties in such manner as the District Court judge directs and in default of such a direction shall abide the event. 22 In specifying that, unless there is a direction to the contrary, the costs shall 'abide the event', this subsection mirrors O 66 r 1(1) of the RSC. 23 Section 64(1) of the District Court Act provides that the costs of any action in the District Court may be paid or apportioned between the parties in such manner as a District Court judge directs. 24 Subject to the District Court Act, a District Court judge has the same power in relation to the payment of costs by any party as a judge of the Supreme Court.6 4 Hemsley v Beyer [74] - [91], [104] and [137]. 5 Frigger v Professional Services of Australia Pty Ltd [No 2] [2025] WASC 238 (S) [5] (Hill J). 6 District Court Act, s 64(3). -- 5 of 8 -- [2026] WADC 33 (S) TROY DCJ [2026] WADC 33 (S) (TZ) Page 6 25 Subject to any inconsistency between the District Court Rules 2005 (WA) and the RSC, the RSC apply to and in respect of any case in the District Court.7 26 The Supreme Court has a wide discretion to award costs in respect of all proceedings in the court.8 27 Despite its breadth, the discretion to award costs is not unfettered, and must be exercised judicially.9 28 Without limiting my wide discretion as to costs, I proceed on the basis the starting point in relation to the award of costs under the RSC is that the court will generally order that the successful party to the action or matter recover their costs.10 29 Here, the plaintiffs have succeeded, to the extent that I have allowed the appeal and granted, over objection, the application to join Hemsley Nominees Pty Ltd as an additional plaintiff. 30 If the plaintiffs have definitively succeeded it would be incumbent on the defendants, as the unsuccessful party, to satisfy me that there are good reasons why it should not pay the plaintiffs' costs.11 31 Of course, what constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case. 32 It does seem to me that the argument that resulted in this contested appeal is inextricably connected with the merits of the case as a whole, namely whether only a registered owner can subdivide land, so that Hemsley Nominees Pty Ltd, now joined as an additional plaintiff, and which has seemingly never been the registered owner of any of the relevant land, cannot be said to have previously subdivided land, is not able to enforce a s 159 Planning and Development Act claim. 33 That is an argument that remains to be resolved in the eventual trial of this action. 7 District Court Rules, pt 1 r 6. 8 Supreme Court Act 1935 (WA), s 37(1); Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 316 [39] (Steytler P, Pullin JA & Murray AJA agreeing). 9 Frigger v Lean [2012] WASCA 66 [53]. 10 RSC, O 66 r 1(1). 11 cf Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394, 407; Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) [5]. -- 6 of 8 -- [2026] WADC 33 (S) TROY DCJ [2026] WADC 33 (S) (TZ) Page 7 34 For the reasons I set out in the Reasons at [137], I do not consider that the defendants ought to have known they had no reasonable prospects of success of resisting the application or the appeal. 35 I consider, accordingly, that the appropriate order is that costs are in the cause. 36 I find that the 13 August 2025 emails simply constitute the process of conferral which the court reasonably expect from the parties, and do not persuade me that, analogously, the 'Calderbank principles'12 are engaged, so as to depart from my view that the costs should be in the cause. 37 For the same reason, if I had ruled that costs should follow the event, I would have done so on a party and party basis. 12 As summarised in Natale [41]. -- 7 of 8 -- [2026] WADC 33 (S) TROY DCJ [2026] WADC 33 (S) (TZ) Page 8 I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. ZO Associate to Judge Troy 6 MAY 2026 -- 8 of 8 --