Mervyn Jonathon Kitay as liquidator of Computer Accounting & Tax Pty Ltd (Acn 009 470 491) v Frigger

[2021] WASCA 78

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Discontinuance of appeal
4. › Whether ordinary rule that discontinuing appellant pays respondent's costs should be displaced
5. › Distinction between surrender and futility
6. › Supreme Court (Court of Appeal) Rules 2005 (WA), r 59(4)
1. Practice and Procedure
2. › Costs
3. › Discontinuance of proceedings
4. › Application of Lai Qin principles
5. › Whether further prosecution of appeal became futile or unnecessary
6. › Whether appellant effectively surrendered

Quick Take

Where an appellant discontinues an appeal not because the proceedings have become futile or been settled but because the appellant has decided the cost of continuing outweighs the benefit, the Lai Qin principles do not apply and the ordinary rule under r 59(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA) — that the discontinuing appellant pays the respondent's costs — will not be displaced. The distinction drawn by Burchett J in One.Tel between cases of effective surrender and cases where a supervening event removes the subject of the dispute is relevant to the exercise of the costs discretion on discontinuance.