3 Oceans Wine Company Pty Ltd v Heyshott Pty Ltd
[2011] WASC 12 (S)
•14 JANUARY 2011
3 OCEANS WINE COMPANY PTY LTD -v- HEYSHOTT PTY LTD [2011] WASC 12 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 12 (S) | |
| Case No: | CIV:1322/2010 | 20 OCTOBER 2010 | |
| Coram: | ALLANSON J | 14/01/11 | |
| 21/02/11 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Costs fixed at $7,500 | ||
| B | |||
| PDF Version |
| Parties: | 3 OCEANS WINE COMPANY PTY LTD HEYSHOTT PTY LTD ANTHONY GORDON RIGGALL MARRI DOWNS PTY LTD ORIOLE JANE VANESSA RIGGALL |
Catchwords: | Practice and procedure Fixed costs Determination of amount |
Legislation: | Legal Practice Act 2003 (WA) Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 (WA) Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA) |
Case References: | Brookvista Pty Ltd v Meloni [2009] WASCA 180 Laing O'Rourke (BMC) Ltd (formerly Barclay Mowlem Construction Ltd) v Dampier Port Authority [2007] WASC 87 Sambo v Portman Iron Ore Ltd [2009] WASC 86 Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 21 FEBRUARY 2011 FILE NO/S : CIV 1322 of 2010 BETWEEN : 3 OCEANS WINE COMPANY PTY LTD
- Plaintiff
AND
HEYSHOTT PTY LTD
First Defendant
ANTHONY GORDON RIGGALL
MARRI DOWNS PTY LTD
ORIOLE JANE VANESSA RIGGALL
Second Defendants
Catchwords:
Practice and procedure - Fixed costs - Determination of amount
(Page 2)
Legislation:
Legal Practice Act 2003 (WA)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 (WA)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA)
Result:
Costs fixed at $7,500
Category: B
Representation:
Counsel:
Plaintiff : Mr D H Solomon
First Defendant : Mr M J Feutrill
Second Defendants : Mr M J Feutrill
Solicitors:
Plaintiff : Solomon Brothers
First Defendant : D F Beere
Second Defendants : D F Beere
Case(s) referred to in judgment(s):
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Laing O'Rourke (BMC) Ltd (formerly Barclay Mowlem Construction Ltd) v Dampier Port Authority [2007] WASC 87
Sambo v Portman Iron Ore Ltd [2009] WASC 86
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1
(Page 3)
1 ALLANSON J: In reasons delivered on 14 January this year, I ordered that pars 4, 5, 23, 24 and 29 of the defendants' re-amended defence be struck out. I further ordered that the defendants pay the plaintiff's costs of both the plaintiff's application and the defendants' application in an amount to be fixed. The amount of costs was held over to give the parties the opportunity to be heard as to that matter.
2 The background to the applications is set out in my earlier decision, and I will not repeat it here save to the extent necessary to explain the present decision.
3 The plaintiff applied by chamber summons dated 16 June 2010 for an order striking out a number of paragraphs of the defendants' amended defence and counterclaim dated 18 May 2010. Following the plaintiff's application and conferral, the defendants applied on about 12 August 2010 for leave to further amend their defence and counterclaim in terms of a minute dated 3 August 2010. On 16 August 2010, Registrar Powell ordered that the two applications be heard together or in sequence at a single special appointment, and that is how they were disposed of.
4 Following the defendants' application, the plaintiffs filed submissions in relation to their application of 16 June 2010. The plaintiff asserted that in applying to amend their defence, the defendants had substantially conceded the plaintiff's objection to their pleading, and those objections had been superseded by the fresh pleading put forward by the plaintiff. As a result, the submissions were largely confined to the question of costs and whether those costs should be paid forthwith.
5 The purpose of fixing costs is to avoid the expense and delay involved in a taxation. The court does not subject the costs to the detailed scrutiny often applied in taxation of costs, but applies a 'broader brush' than would be applied on taxation: Brookvista Pty Ltd v Meloni [2009] WASCA 180 [26] (Newnes JA). His Honour continued at [27]:
But in fixing the amount of the costs, the approach of the court should be 'logical, fair and reasonable': see Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, 123; Nine Films and Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046 [8]. And the power to award a fixed sum should only be exercised when the court considers that it can determine the amount of the costs fairly. That means the court must have available to it sufficient material that it is confident it can arrive at an appropriate sum: see Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 [22].
6 I have already determined that the costs should be fixed, and in my opinion that remains the appropriate order. Each party has now filed
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- submissions on what amount should be fixed. The plaintiff has put before me sufficient detailed material that I am satisfied that I can determine the amount that is fair and reasonable.
7 The plaintiff relies on item 10(a) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 (WA) for work done before July 2010 and on the Determination of 2010 for work after that date. Item 10(a) is the relevant item in each case. It provides for proceedings in chambers (other than proceedings to which item 11 applies). The plaintiff submits that (for two applications) it is seeking less than twice the maximum amount allowed under item 10(a). The submission does not take into account that the amount under the scale is based on the fee earner being counsel - while most of the time charged in this matter is for work by a junior practitioner. Further, there was one hearing on both applications and that occupied only two hours.
8 In exercising my discretion with respect to the amount of the costs, I have also considered the schedule of standard costs orders for interlocutory applications set out in the Consolidated Practice Directions, but on the basis that it is intended as a guide only, and is not intended to be determinative of the amount to be awarded in any particular case. The amount to be awarded in a particular case should reflect the circumstances of that case, and the amount and complexity of the work done: Sambo v Portman Iron Ore Ltd [2009] WASC 86.
9 Finally, I have had regard to the principle that matters before the court be managed and supervised with the object (among others) of ensuring that the costs of the procedure to the parties and the Sate are proportionate to the value, importance and complexity of the subject matter in dispute: see Rules of the Supreme Court 1971 (WA) O 1 r 4B.
10 In its submissions, the plaintiff has provided a schedule setting out the work done by junior and senior practitioners in relation to each application. The first six items in the schedule apparently relate to work done before any consideration of the amended defence and counterclaim dated 18 May 2010. Indeed, the first five items (for six hours of combined junior and senior practitioner time) relate to work done before that document was even filed. To 16 June 2010, when the chamber summons to strike out part of the amended defence and counterclaim was filed, the plaintiff claims for 21.1 hours. The time for preparing the application itself is 7.4 hours - which includes a chamber summons that is 11 pages long. The chamber summons is longer than the applicant's outline of submissions. In stating the grounds of the application, it largely
(Page 5)
- duplicates the material set out in earlier correspondence on 29 March and 31 May 2010 and is more in the nature of a submission, including the citation of authorities. The memorandum of conferral runs for 10 pages with a further 38 pages of attachments. A further eight hours is claimed for preparing documents (including an outline of submissions) in support of the plaintiff's application, as well as another 2.5 hours 'general preparation' in relation to both applications. That is about three days in preparation for the plaintiff's application. And this is despite the fact that, as the plaintiff submitted, the pleading it was challenging had been superseded by the defendants' proposed re-amended defence of 3 August 2010.
11 Following the filing of the plaintiff's application of 16 June, the plaintiff has claimed for another 10 hours for perusing and considering correspondence and other documents (including proposed minutes of amendment dated 9 July and 15 July) before the defendants applied for leave to amend in terms of a minute dated 3 August 2010. It is not clear to which application that work is said to relate. I assume much of it relates to the response to the defendants' application for leave to amend, as a letter from the applicant's solicitors of 19 July sets out the substance of the arguments in the applicant's later submissions.
12 Another eight hours is itemised for perusing and considering the documents filed by the defendants in support of their application, and preparing the submissions in opposition to it.
13 The plaintiff also claims for attending on the reserve judgment, preparing written submissions on costs and perusing and considering the defendants' written submissions on costs. In this way, the plaintiff has put forward a 27 item schedule in which it seeks costs of $19,000, relating to over 48 hours of junior practitioner's time and over 12 hours for a senior practitioner, for a hearing in relation to a relatively limited pleading dispute which occupied about two hours in court.
14 One matter in contention between the parties is the cost of correspondence between the parties. Many of the items in the plaintiff's schedule relate to, or include, correspondence with the defendants' solicitor or counsel. The defendants submit that the cost of conducting correspondence between the parties in relation to an interlocutory application is not recoverable under item 10 of the scale, and that correspondence is a cost which, if recoverable at all, is recoverable by the party who is ultimately successful. The plaintiff contends that the correspondence is part of the costs of conferral between the parties'
(Page 6)
- solicitors in relation to an interlocutory application, and recoverable as part of the costs of that application. It submits that in conferring with the defendants, it was attempting to resolve the issues between them and meeting its obligation under O 59 r 9 of the Rules of the Supreme Court.
15 I can accept neither submission in its entirety. The costs incurred in respect of the process of conferral may be recoverable: see Laing O'Rourke (BMC) Ltd (formerly Barclay Mowlem Construction Ltd) v Dampier Port Authority [2007] WASC 87 [34]. While those costs may not fall within item 10 of the scale, they would be recoverable under item 23 of the 2008 Determination, and item 24 of the 2010 Determination. In the present case however, the plaintiff claims (apparently as conferral) correspondence by way of letters and emails with the defendants' solicitors. There are several telephone conversations, each by a junior practitioner, in which there was no actual discussion about how to resolve the interlocutory dispute before the court. The correspondence by way of letters and email, which is claimed as conferral, is largely set out in the affidavit of the solicitor for the plaintiff, Ms Tracy Hong, affirmed 31 August 2010. It does not appear from the correspondence that there was ever conferral in the sense described in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1. The plaintiff provided the defendants with a detailed analysis of the flaws it perceived in the defendants' proposed minutes and invited the defendants to revise their pleading:
(1) on 31 May 2010, in relation to the proposed amended defence of 18 May 2010;
(2) on 13 July 2010, in relation to a minute of proposed re-amended defence dated 9 July 2010; and
(3) on 19 July 2010, in relation to a minute of 15 July. The 19 July letter contains the substance of the submissions that were later filed.
Conclusion
16 The order which I made on 14 January 2011 was that the defendants pay the plaintiff's costs of both the plaintiff's application and the defendants' application in an amount to be fixed. That order in my opinion, did, and was intended to, relate to the costs of the applications by the plaintiff to strike out the amended defence and counterclaim of the defendants, and the defendants' application for leave to amend. It was not, to cite an obvious example, an order for the costs in relation to perusing
(Page 7)
- and considering the defence and counterclaim dated 16 March and corresponding with the defendants in relation to it.
17 Even within matters which clearly relate to the applications, I am not satisfied (on the plaintiff's application of 16 June 2010) that it is reasonable to allow seven hours for considering the pleading and providing a letter setting out objections, another seven hours for preparing the application (including a 48 page memorandum of conferral), and a further eight hours for submissions.
18 Nor am I satisfied that the plaintiff should have costs awarded for all of the time in correspondence in which it sets out its arguments regarding the defendants' pleading, and submissions which largely reproduce that material.
19 In my opinion, the plaintiff is entitled to more than the amount set out in the schedule in the consolidated practice directions - the matter was more complex than the type of case contemplated in that scale. The costs should not include both correspondence before the plaintiff's application, and the full costs of the application which largely reproduces that correspondence. Similarly, they should not include correspondence and submissions which travel the same ground. I have fixed costs on the basis that the defendants should pay the plaintiff's costs of the plaintiff's application to strike out, the submissions on the defendants' application, general preparation, and the directions hearing and the hearing. I have allowed part only of the submissions on the plaintiff's application as it was apparent that the pleading to which they relate would be replaced at the time those submissions were prepared.
20 I fix costs in the amount of $7,500.00.
0
10
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