ALLSTATE Plumbing Pty Ltd v Crouch Developments Pty Ltd [No 3]

[2011] WADC 88

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   ALLSTATE PLUMBING PTY LTD -v- CROUCH DEVELOPMENTS PTY LTD [No 3] [2011] WADC 88

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   ON THE PAPERS

DELIVERED          :   2 JUNE 2011

FILE NO/S:   CIV 3314 of 2008

BETWEEN:   ALLSTATE PLUMBING PTY LTD

Plaintiff

AND

CROUCH DEVELOPMENTS PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia 1971 - Review of taxation - Turns on its facts

Legislation:

Nil

Result:

Objection not sustained

Representation:

Counsel:

Plaintiff:     Not applicable

Defendant:     Not applicable

Solicitors:

Plaintiff:     Lewis Blyth & Hooper

Defendant:     Mossensons

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

Nil

1. DEPUTY REGISTRAR HARMAN:  The defendant sought leave to file further and better particulars of its counterclaim and that application was unsuccessful.  In the course of the subsequent appeal, the defendant generated a series of proposed particulars which on a number of occasions were put before a judge in chambers . 

2. Ultimately an order was made in the following terms on 22 September 2010:

   1.the appeal be dismissed;

   2.the plaintiff pay the defendant's costs at the appeal to be taxed;

   3.the defendant pay the plaintiff's costs except insofar as they are of an unreasonable amount or have been incurred unreasonably so that, subject to those exceptions, the plaintiff will be completely indemnified by the defendant for the costs incurred of an incidental to the defendant's oral applications for leave to amend the defence and counterclaim including:

   i.all attendances in chambers on 10/8/10, 17/8/10, 3/9/10, 10/9/10, 15/9/10, and 22/9/10;

   ii.all costs of reviewing the minutes of proposed amended defence and counterclaim and conferring with the counsel or solicitors for the defendant in respect to the minutes of proposed amended defence and counterclaim dated 28/7/10, 10/8/10, 25/8/10, 2/9/10, 8/9/10, 13/9/10, 15/9/10, and 16/9/10;

   such costs to be taxed and paid forthwith. 

3. The plaintiff's bill was taxed on 28 March 2011 and the defendant has now lodged a notice of objection which is in the following terms:

   The taxing officer erred in principle in:

   i.allowing all of the items claimed when:

   (a)the form of the plaintiff's bill of costs of taxation was objected to by the defendants on the grounds that it failed to:

   i.distinguish between the cost of the appeal and the costs of the application for leave to amend in accordance with the order made by his Honour Judge Birmingham QC on 22 September 2010;

   ii.refer to the appropriate scale items, claiming $10,958.75 for counsel's fee as a disbursement.

   (b)Notwithstanding the defendant's objection, the plaintiff wished to proceed with the taxation without amending the bill. 

   (c)The taxing officer proceeded to tax the plaintiff's bill by amending the bill without notice so that the defendant was denied natural justice. 

   ii.Allowing the sum of $9,570 being the maximum amount permitted under the scale for the application for leave to amend without considering whether the amount was unreasonable or had been incurred unreasonably in accordance with the order made by his Honour Judge Birmingham QC on 22 September 2010.

   iii.Allowing an amount of $7,774.25 for counsel fee of Mr B W Ashdown as a disbursement when it had not been vouched for as required under O 66 r 36. 

4. The relevant parts of the plaintiff's bill read as follows:

   Costs

Item number	Description of a Service	Cost
1	Entry for hearing directions listing 8 June 2010, instructing counsel Mr B W Ashdown …	$118.80
2	Plaintiff's outline of submissions / legal authorities / list of orders wanted – receive from counsel Mr B W Ashdown, consider, comment and refer to plaintiff – 6 July 2010 …	$198.00
3	Plaintiff's instructing solicitor reviewing minutes of proposed amended defence and counterclaim and conferring with counsel (Mr B W Ashdown) and solicitors for the defendant in respect of minute of proposed amended defence and counterclaim dated 28/7/10, 10/8/10, 25/8/10, 2/9/10, 8/9/10, 13/9/10, 15/9/10, and 16/9/10, including referring all such minutes to the plaintiff for instructions and getting up appeal for hearing – item 3 …	$2,851.20

Disbursements

(a) Counsel fee – Mr B W Ashdown from 26 May 2010 to 23 September 2010 (inc) per tax invoice of 23 September 2010 attached … $10,958.75

1. At taxation, item 1 was allowed.  In the process of dealing with the fee claimed, an amount of $247.50 was sought to be added and the plaintiff succeeded with the claim in its amended form. 

2. Item 2 of the bill was deleted and substituted with a claim for getting up the appeal for hearing in an amount of $198.  The item was allowed and the plaintiff succeeded with the claim. 

3. Item 2A was added to the bill and it read:

   2A.Counsel fee on hearing - $2,970. 

4. The only other amendment to the bill was that the words 'and getting up appeal for hearing – item 3' at the conclusion of item 3 were deleted.

5. On an overview of what I have just canvassed, items 1, 2 and 2A were taxed under the District Court Appeals Scale.  Item 3 was taxed under the Supreme Court Scale in accordance with par 3 of the order. 

6. Turning to the terms of the defendant's objection I accept that at taxation the defendant objected to the form of the bill but not as I recall the terms of the amendment.  That observation is not significant other than to the extent that the parties and the taxing officer were cognisant of the effect of the order and the scale that would apply to the particular work undertaken by the plaintiff.  By way of illustration, as I recall, the recasting of item 2 was in response to the submissions of the defendant.  The consequential deletion of parts of par 3 occurred at two points, the first in the process of recasting item 2 and the second on dealing with item 3. 

7. It may be that an inexperienced person considering the bill would have been assisted by a clear distinction being drawn between the claims made for the costs of the appeal and the claims made under item 3 of the order I do not consider that either in the course of taxation or by the determinations the defendant was in any way disadvantaged. 

8. Be that as it may, I do not consider that on the day an experienced solicitor such as the defendant's representative could possibly have been confused as to how each item was taxed. 

9. As to the fact that counsel's fee was claimed as a disbursement.  I do not consider that the defendant was thereby disadvantaged. 

10. Before I leave that part of the objection perhaps I should add that when it came to taxing the claim in item 3, the disbursement was considered in accordance with O 66 r 11(4). 

11. Item 1b of the notice could not amount to a proper objection. 

12. As I see ground 1 as a whole, it is that the taxation proceeded on the day when it might properly have been adjourned to enable the plaintiff to recast the bill.  As a result of the recasting that was undertaken at the taxation, the defendant was not disadvantaged as the total claim was not increased. 

13. I indicated to the parties that I would permit the taxation to proceed on the basis that to some extent the bill would be recast unless I perceived that there were sufficient grounds to require the plaintiff to formally recast the bill.  I did not consider that the process of redrafting that ensued was significant even though I understand that an inexperienced person may have been considered disadvantaged by the process that was undertaken to the extent that it was. 

14. My final observation in relation to the first ground of the notice is that the defendant does not contend for any error made by the taxing officer in the process of reconstructing the bill, allowing the items and the fees. 

15. As to the second ground, the defendant bore the onus of establishing that any relevant part of the service was unreasonably provided and that the amount claimed for it was unreasonable.  The defendant made no submissions whatsoever.  The plaintiff's claim was for more than the maximum recoverable under the scale and accordingly the fee was determined at the maximum of the amount permitted under the scale. 

16. As to the third item, as I have already indicated, counsel's fee was claimed as a disbursement but was considered under item 3 of the bill. 

17. The defendant's objections are without merit.