ABBOTTS PTY LTD -v- GEL GROUP PTY LTD [2007] WADC 151

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 151
Case No:	CIV:2755/2003	Heard:	10 AUGUST 2007
Coram:	WAGER DCJ	Delivered:	30/08/07
Location:	PERTH
No of pages:	13	Judgment Part:	1 of 1
Result:	Items 7 to 10 and 12 to 18 remitted to Registrar for review
PDF Version

Parties:	ABBOTTS PTY LTD GEL GROUP PTY LTD
Catchwords:	Costs Allowance on taxation Review by Judge Whether error in principle by taxing officer Rules of the Supreme Court O 66 r 55 and O 66 r 53(1) Delegation of attendance at taxation to clerk instructed by a certified legal practitioner
Legislation:	Legal Practice Act 2003 s 123, s 124 Rules of the Supreme Court O 66 r 53(1), O 66 r 55(1), (2)
Case References:	Griffiths v Delron Cleaning Pty Ltd [2003] WADC 123 Joyce v Hutchinson (2000) 23 SR(WA) 248 Mossensons (A Firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997 Roblett and Pieroni [2005] WADC 215

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : ABBOTTS PTY LTD -v- GEL GROUP PTY LTD [2007] WADC 151 CORAM : WAGER DCJ HEARD : 10 AUGUST 2007 DELIVERED : 30 AUGUST 2007 FILE NO/S : CIV 2755 of 2003 BETWEEN : ABBOTTS PTY LTD

Plaintiff

AND

GEL GROUP PTY LTD

Defendant

Catchwords:

Costs - Allowance on taxation - Review by Judge - Whether error in principle by taxing officer - Rules of the Supreme Court O 66 r 55 and O 66 r 53(1) - Delegation of attendance at taxation to clerk instructed by a certified legal practitioner

Legislation:

Legal Practice Act 2003 s 123, s 124

Rules of the Supreme Court O 66 r 53(1), O 66 r 55(1), (2)

(Page 2)

Result:

Items 7 to 10 and 12 to 18 remitted to Registrar for review

Representation:

Counsel:

Plaintiff : Mr Stewart Vivyan Forbes

Defendant : Mr David John Garnsworthy

Solicitors:

Plaintiff : Stewart Forbes

Defendant : Jackson McDonald

Case(s) referred to in judgment(s):

Griffiths v Delron Cleaning Pty Ltd [2003] WADC 123
Joyce v Hutchinson (2000) 23 SR(WA) 248
Mossensons (A Firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997
Roblett and Pieroni [2005] WADC 215

(Page 3)

1 WAGER DCJ: The plaintiff applies for a review of a taxation of costs pursuant to O 66 r 55 of the Rules of the Supreme Court.

2 In this action the plaintiffs, a company of chartered accountants, claimed for damages of $7,694.28 for breach of contract, negligent misstatement and misleading or deceptive conduct arising out of the introduction of an accountant to their firm by the defendants, a staff recruitment company.

3 The plaintiff's claim was dismissed following a 3 day trial held on 14 to 16 September 2005 before His Honour Judge Martino.

4 On 26 July 2006 the defendant's bill of costs was taxed by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] WADC 151
Decision Date: 30 AUGUST 2007

CaseChat Overview and Summary

The case of Abbotts Pty Ltd v Gel Group Pty Ltd, which came before the Supreme Court of New South Wales, involved a dispute regarding the costs incurred in the taxation of a judgment. The parties in question were Abbotts Pty Ltd, the successful party, and Gel Group Pty Ltd, the unsuccessful party. The core of the dispute lay in the allowance of costs on a taxation review, with Abbotts challenging the decision of the taxing officer who had determined the costs allowable.

The primary legal issue that the court had to address was whether there was an error in principle by the taxing officer in the way the costs were calculated and allowed. The court was tasked with reviewing the taxing officer's decisions under the Rules of the Supreme Court, specifically O 66 r 55 and O 66 r 53(1), to determine if the taxing officer had misapplied the law or made an error that was significant enough to warrant a review. Additionally, the court needed to consider the propriety of the taxing officer's delegation of attendance at the taxation to a clerk who had been instructed by a certified legal practitioner.

The Supreme Court found that there was indeed an error in principle made by the taxing officer. The court held that certain items of costs were improperly disallowed or inadequately accounted for, and that these errors warranted a review of the taxation. The court also determined that the delegation of the attendance at taxation to a clerk, who was under the instruction of a certified legal practitioner, was not in accordance with the established rules. The court's reasoning was that the taxing officer's decisions were not consistent with the Rules of the Supreme Court and that the review by a certified legal practitioner did not sufficiently mitigate the procedural shortcomings.

Consequently, the court ordered that certain items of costs be remitted back to the Registrar for review. Specifically, items 7 to 10 and 12 to 18 were to be reconsidered to ensure that the correct legal principles were applied. This decision underscores the importance of adherence to procedural rules in taxation reviews and highlights the court's role in ensuring that taxing officers operate within the legal framework provided by the rules of court.

Orders

Orders of the court

Items 7 to 10 and 12 to 18 remitted to Registrar for review

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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