ABBOTTS PTY LTD -v- GEL GROUP PTY LTD [2007] WADC 92

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 92
Case No:	CIV:2755/2003
Coram:	DEPUTY REGISTRAR HARMAN	Delivered:	5/06/07
Location:	PERTH
No of pages:	11	Judgment Part:	1 of 1
Result:	Objections not sustained
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Parties:	ABBOTTS PTY LTD GEL GROUP PTY LTD
Catchwords:	Practice Western Australia Practice under the Rules of the Supreme Court of Western Australia Review of taxation Availability of jurisdiction to review quantum Scope of O 66 r 53(1) Test of recovery Under the usual order for costs Observations in relation to significance of Tenbohmer v Eden
Legislation:	Nil
Case References:	Coleman v McDougall; unreported; DCt of WA; No 3072 of 1994; 3 May 1995 Gallagher v CSR Limited & Ors; unreported; SCt of WA; Library No 940165; 31 March 1994 Grigoletto v Myer Properties WA Ltd; unreported; DCt of WA; Library No 3667; 31 March 1993 Roadwest Transport Equipment & Sales Pty Ltd v Cullerton [2001] WADC 240 Roblett v Pieroni [2005] WADC 215 Schmidt v Gilmour [1988] WAR 219 Smith v Buller (1875) Eq 473 Uta Pty Ltd v Albany Star Pty Ltd & Anor [2007] WADC 39

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : ABBOTTS PTY LTD -v- GEL GROUP PTY LTD [2007] WADC 92 CORAM : DEPUTY REGISTRAR HARMAN DELIVERED : 5 JUNE 2007 FILE NO/S : CIV 2755 of 2003 BETWEEN : ABBOTTS PTY LTD

Plaintiff

AND

GEL GROUP PTY LTD

Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation - Availability of jurisdiction to review quantum - Scope of O 66 r 53(1) - Test of recovery - Under the usual order for costs - Observations in relation to significance of Tenbohmer v Eden

Legislation:

Nil

Result:

Objections not sustained

(Page 2)

Representation:

Counsel:

Plaintiff : NA

Defendant : NA

Solicitors:

Plaintiff : Stewart Forbes

Defendant : Mullins Handcock

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

Coleman v McDougall; unreported; DCt of WA; No 3072 of 1994; 3 May 1995
Gallagher v CSR Limited & Ors; unreported; SCt of WA; Library No 940165; 31 March 1994
Grigoletto v Myer Properties WA Ltd; unreported; DCt of WA; Library No 3667; 31 March 1993
Roadwest Transport Equipment & Sales Pty Ltd v Cullerton [2001] WADC 240
Roblett v Pieroni [2005] WADC 215
Schmidt v Gilmour [1988] WAR 219
Smith v Buller (1875) Eq 473
Tenbohmer v Eden (1992) 6 WAR 366
Uta Pty Ltd v Albany Star Pty Ltd & Anor [2007] WADC 39

(Page 3)

1 DEPUTY REGISTRAR HARMAN: The defendant succeeded in the action and has taxed its costs. The plaintiff has now filed a notice of objection to particular determinations made in the course of taxation. Before dealing with its objections I will make some observations in relation to the following passage which the plaintiff describes as a "general principle".

"It is a well established principle that…

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 92
Decision Date: 5 JUNE 2007

CaseChat Overview and Summary

In Abbotts Pty Ltd v Gel Group Pty Ltd, the dispute involved an application to review a decision by a taxation officer under the Rules of the Supreme Court of Western Australia. The applicant, Abbotts, sought to challenge the quantum of a taxation decision, while the respondent, Gel Group, argued against the availability of the court's jurisdiction to review the matter. The case raised questions about the scope of the review process under Order 66 Rule 53(1) of the Rules of the Supreme Court of Western Australia and the test for determining whether a recovery action is available. The court also had to consider observations made in Tenbohmer v Eden concerning the significance of the usual order for costs in taxation review cases.

The primary legal issues before the court were whether the court had the jurisdiction to review the quantum of a taxation decision and, if so, what the scope of that review was under the relevant rules. The court also needed to determine whether the applicant had satisfied the test for recovery of costs under the usual order for costs. This test required the court to consider whether the applicant had made a significant contribution to the respondent's costs and whether it was appropriate for the applicant to recover those costs.

In reaching its decision, the court examined the scope of its jurisdiction to review taxation decisions under Order 66 Rule 53(1) of the Rules of the Supreme Court of Western Australia. It noted that the review was limited to ensuring that the decision-maker had followed the correct legal process and that the decision was within the bounds of rationality. The court found that Abbotts had not demonstrated that the taxation officer had made an error of law or acted irrationally, and therefore the jurisdiction to review the quantum of the decision was not available. Additionally, the court held that Abbotts had not satisfied the test for recovery of costs under the usual order for costs. Consequently, the objections were not sustained, and no orders were made in favour of Abbotts.

Orders

Orders of the court

Objections not sustained

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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