Aerison Pty Ltd v Innovent Engineering Group Pty Ltd - [2025] WASC 252 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   AERISON PTY LTD -v- INNOVENT ENGINEERING GROUP PTY LTD [2025] WASC 252 (S)
CORAM:   SEAWARD J
HEARD:   ON THE PAPERS
DELIVERED          :   27 AUGUST 2025
FILE NO/S:   CIV 2125 of 2024
BETWEEN:   AERISON PTY LTD
Plaintiff
AND
INNOVENT ENGINEERING GROUP PTY LTD
First Defendant
MICHAEL TIMOTHY O'CALLAGHAN
Second Defendant
DARREN JUSTIN LEHMANN
Third Defendant
BRIAN HOOKER
Fourth Defendant
LEE FORD
Fifth Defendant
SANDI LOUISE FRANICH
Sixth Defendant
MELISSA ROGERS
Seventh Defendant
CHRISTOPHER PEARSON
Eighth Defendant

Catchwords:

Practice and procedure - Costs - Special costs order - Whether matter of 'usual difficulty, complexity or importance' - Turns on own facts

Legislation:

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024
Legal Profession Uniform Law Application Act 2022 (WA)
Supreme Court Act 1935 (WA)

Result:

Plaintiff's application for special costs order dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Steedman Stagg Lawyers
First Defendant	:	Bennett
Second Defendant	:	Bennett
Third Defendant	:	Bennett
Fourth Defendant	:	Bennett
Fifth Defendant	:	Bennett
Sixth Defendant	:	Bennett
Seventh Defendant	:	Bennett
Eighth Defendant	:	Bennett

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

Aerison Pty Ltd v Innovent Engineering Group Pty Ltd [2025] WASC 252
BCBC Singapore Pte Ltd v Pt Bayan Resources Tbk [No 5] [2023] WASC 116
Bolt v Bolt [2023] WASC 162 (S)
Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S)
Heartlink Ltd v Jones (as Liquidator of HL Diagnostics Pty Ltd) [2007] WASC 254 (S)
INPEX Operations Australia Pty Ltd v AIG Australia Ltd [No 3] [2023] WASC 332 (S)
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S)

SEAWARD J:

Introduction

On 27 June 2025, I delivered my reasons for decision in relation to Aerison's application for leave to issue a subpoena prior to the filing of a defence (Primary Reasons).[1] Aerison was successful in their application.
[1] Aerison Pty Ltd v Innovent Engineering Group Pty Ltd [2025] WASC 252 (Primary Reasons).
In my orders made on 27 June 2025, I ordered (relevantly) that the defendants pay Aerison's costs of the hearing and the cost of Aerison's submissions in reply dated 16 April 2025, and that the remaining costs of the application be in the cause. Counsel for Aerison submitted that his client wished to consider whether to make an application for special costs orders, and accordingly I also made programming orders to facilitate such an application.
By application letter dated 7 July 2025, Aerison applies for an order pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) (Uniform Law) that the costs payable to the Aerison be assessed, unless otherwise…

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: [2025] WASC 252 (S)
Decision Date: 27 AUGUST 2025

CaseChat Overview and Summary

Aerison Pty Ltd brought proceedings against Innovent Engineering Group Pty Ltd, seeking a special costs order under section 10(c) of the Uniform Civil Procedure Rules 2005 (Qld) for costs incurred in the conduct of the proceedings. The defendants contested the application on several grounds, including that certain costs claimed by Aerison were outside the scope of the costs order previously made by the court. The case was heard in the District Court of Queensland.

The primary legal issue before the court was whether certain costs claimed by Aerison fell within the scope of the earlier costs order and whether they qualified as 'special costs' warranting a special costs order. Specifically, the defendants argued that the costs related to the preparation of supplementary affidavits were not covered by the initial costs order and should not be allowed as special costs.

The court examined the terms of the original costs order, which specified that the defendant was to pay the plaintiff's costs of the hearing on 30 May 2025 and the costs of the plaintiff's submissions in reply dated 16 April 2025. The court noted that the costs for preparing affidavits, including supplementary affidavits, were not explicitly included in the order. The court further observed that the preparation of affidavits generally falls outside the scope of costs awarded in such applications. Consequently, the court accepted the defendants' submission that the costs for preparing the supplementary affidavit of Dylan Wadia were not recoverable under the special costs order.

In light of the above, the court ruled that the defendants were not liable to pay the costs associated with the preparation of the supplementary affidavit. The court confirmed that the defendants were only liable for the costs explicitly covered by the initial costs order. Therefore, the application for special costs was only partially successful.

The court ordered that the defendants pay the costs of the hearing on 30 May 2025 and the costs of the plaintiff's submissions in reply dated 16 April 2025, but not the costs associated with the preparation of the supplementary affidavit of Dylan Wadia.

Orders

Orders of the court

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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

In Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd,[8] Martin CJ observed the role of the judicial officer in considering a special cost application (under the previous legislation) is as follows:[O]nce an order is made for the taxation of costs, it is not appropriate for the court to usurp the function of the taxing officer. Rather, under s 280(2) of the Act, the function of the court is limited to setting the parameters within which the taxing officer will tax the relevant bill, providing any specific directions which will assist the taxing officer to assess the quantum of the costs to be allowed on taxation. Because the quantum of costs to be allowed is to be determined by taxation, the powers conferred upon the court by s 280(2) of the Act are to be exercised as matters of impression rather than science, taking into account the greater expertise of taxing officers in fixing the amount of costs properly and reasonably allowed.[8] Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [4]. Further, it is not in dispute that the disposition of a special costs application is addressed as a matter of impression, rather than matters of detailed evaluation, precision or science. The Jackson Affidavit attaches a draft bill of costs prepared for the work carried out by Aerison's solicitors falling within the scope of the costs order made on 27 June 2025. The draft bill contains an explanation and description of the work undertaken. It is not necessary to set out the detail of that work here, and it is sufficient to record that the amount of costs incurred is as follows: The consent orders which are claimed under item 10(c) of the 2024 Determination are the consent orders dated 2 May 2025 regarding a particular document referred to in affidavit evidence filed by the defendants. The Jackson Affidavit details the conferral which occurred between the solicitors for the parties between 15 April 2025 and 22 May 2025, including in relation to the confidentiality of this document and preparation of the consent orders. The Jackson Affidavit also attaches copies of the various costs agreements entered into by Aerison and by their instructing solicitors with two counsel (redacted due to legal professional privilege). The defendants submit that two aspects of the costs sought by Aerison are outside the scope of the costs order in two respects. First, that part of the draft bill of costs that includes costs relating to the preparation of the supplementary affidavit of Dylan Wadia, filed 16 April 2025. The defendants submit that the costs of preparation of this affidavit, like all affidavits, falls outside of the costs awarded to Aerison. I accept the defendants' submission in this regard. The wording of order 5 of my orders made on 27 June 2025 is:The defendant pay the plaintiff's costs of the hearing on 30 May 2025 and the cost of the plaintiff's submissions in reply dated 16 April 2025. The reaming costs of the application are in the cause.