Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd
[2003] WASC 53 (S4)
ALPINE HOLDINGS PTY LTD & ORS -v- WARWICK ENTERTAINMENT CENTRE PTY LTD & ORS [2003] WASC 53 (S4)
| Link to Appeal : | [2005] WASCA 174 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 53 (S4) | |
| Case No: | CIV:1208/1998 | 4-8 & 11-14 NOVEMBER 2002, 14 JULY 2003, 27 & 31 MAY 2004 | |
| Coram: | ROBERTS-SMITH J | 24/03/03 | |
| 23/07/04 | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time granted Application for removal of costs limit granted | ||
| B | |||
| PDF Version |
| Parties: | ALPINE HOLDINGS PTY LTD (ACN 009 471 907) EGON KONIG SHELLEY KONIG WARWICK ENTERTAINMENT CENTRE PTY LTD (ACN 054 246 918) WESTGEM HOLDINGS PTY LTD (ACN 050 218 954) ROBERT STEELE BRIAN McCUBBING |
Catchwords: | Costs Whether O 66 r 12(1) of the Rules of the Supreme Court or s 215 of the Legal Practice Act 2003 (WA) applies Judgment delivered before Legal Practice Act came into operation Plaintiffs had vested right to costs Order 66 r 12(1) applied |
Legislation: | Legal Practice Act 2003 (WA), s 215 |
Case References: | Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53 Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53(S) Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53(S2) CIBC Wood Gundy Australia Ltd & Anor v ICL Australia Pty Ltd [1999] WASC 93 SDS Corporation Ltd v Pasdonnay Pty Ltd & Anor [2004] WASC 26(S4) Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 23 JULY 2004 FILE NO/S : CIV 1208 of 1998 BETWEEN : ALPINE HOLDINGS PTY LTD (ACN 009 471 907)
- First Plaintiff
EGON KONIG
Second Plaintiff
SHELLEY KONIG
Third Plaintiff
AND
WARWICK ENTERTAINMENT CENTRE PTY LTD (ACN 054 246 918)
First Defendant
WESTGEM HOLDINGS PTY LTD (ACN 050 218 954)
Second Defendant
ROBERT STEELE
Third Defendant
BRIAN McCUBBING
Fourth Defendant
(Page 2)
Catchwords:
Costs - Whether O 66 r 12(1) of the Rules of the Supreme Court or s 215 of the Legal Practice Act 2003 (WA) applies - Judgment delivered before Legal Practice Act came into operation - Plaintiffs had vested right to costs - Order 66 r 12(1) applied
Legislation:
Legal Practice Act 2003 (WA), s 215
Result:
Application for extension of time granted
Application for removal of costs limit granted
Category: B
Representation:
Counsel:
First Plaintiff : Mr P Sheavyn & Mr O D Feinauer
Second Plaintiff : Mr P Sheavyn & Mr O D Feinauer
Third Plaintiff : Mr P Sheavyn & Mr O D Feinauer
First Defendant : Mr N D C Dillon
Second Defendant : Mr N D C Dillon
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
First Plaintiff : Feinauer & Associates
Second Plaintiff : Feinauer & Associates
Third Plaintiff : Feinauer & Associates
First Defendant : Williams & Hughes
Second Defendant : Williams & Hughes
Third Defendant : No appearance
Fourth Defendant : No appearance
(Page 3)
Case(s) referred to in judgment(s):
Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53
Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53(S)
Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53(S2)
CIBC Wood Gundy Australia Ltd & Anor v ICL Australia Pty Ltd [1999] WASC 93
SDS Corporation Ltd v Pasdonnay Pty Ltd & Anor [2004] WASC 26(S2)
Case(s) also cited:
Nil
(Page 4)
1 ROBERTS-SMITH J: This matter has become unfortunately protracted.
2 This is the fourth occasion on which I have had to deliver a supplementary judgment in it.
3 The trial of this action was held in November 2002. My primary reasons allowing the plaintiff's claim and dismissing the first defendant's counterclaims were delivered on 24 March 2003: Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53.
4 On 14 July 2003 I delivered a supplementary judgment in which I gave judgment for the plaintiff and assessed damages. I dismissed counterclaims by the first and second defendants, refused an application by the plaintiff for indemnity costs, ordered the defendants to pay the plaintiff's costs on a party/party basis and dismissed an application by the first and second defendants for a stay of execution pending appeal, but granted a partial stay in respect of the third and fourth defendants: Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53(S).
5 On 27 May 2004 I made orders that the plaintiffs have leave to apply out of time for removal of the costs limit in item 13 of the costs scale pursuant to O 66 r 12(1) of the Rules of the Supreme Court ("RSC"). I granted the application for removal of the limit: Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53(S2).
6 It was subsequently learned that the plaintiff's applications and material in support had not been served on the third and fourth defendants and that is why they had not appeared at the hearing on 27 May. I called the matter on before me again and having heard from counsel for the plaintiffs and the first and second defendants I recalled the orders made the previous Thursday and set them aside, except for an order that the plaintiffs pay the first and second defendant's costs of the application in any event: Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53(S3).
7 On 31 May 2004 I further ordered that unless the third and fourth defendants, by no later than 4.00 pm Wednesday 7 July 2004, filed and served upon the plaintiffs any affidavits or submissions in opposition, or wrote to the Court to the effect that they wished to be heard in the matter, the plaintiffs would be granted leave to make the application out of time and pursuant to O 66 r 12(1) RSC the taxing officer tax the plaintiffs' bill
(Page 5)
- of costs on the basis the limit in item 13 of the Supreme Court scale of costs had been removed.
8 I indicated at the hearing on 31 May that if either of the third or fourth defendant wished to be heard, the matter would be re-listed and that in any event, if the third or fourth defendant did make either written or oral submissions, the first and second defendants and the plaintiffs would also have the opportunity to address any new matters so raised.
9 No affidavit nor submission has been filed or served by the third defendant.
10 On 5 July 2004 the fourth defendant filed a submission in opposition to the plaintiff's application for a special costs order.
11 In his written submission the fourth defendant adopted the submissions previously made by the first and second defendants. He then set out the terms of O 66 r 12(1) RSC and s 215(2) of the Legal Practice Act 2003, which he described as "effective at the time of the plaintiff's application". The balance of his submission was as follows:
"4. Sub-section 215(2) of the Legal Practice Act (which by virtue of being legislation, takes precedence over the Rules of the Supreme Court) therefore:
4.1 adds 'unusual difficulty' as a basis for making a special order as to costs; and
4.2 removes 'any other good or sufficient reason' as a basis for making a special order as to costs.
5. In drafting sub-section 215(2) of the Legal Practice Act 2003, a deliberate decision was made by Parliament to depart from the wording of Order 66 rule 12(1) as it was seen as providing too broad a discretion for the making of special orders as to costs.
6. In the premises, the Court's orders granting leave to the plaintiff to bring an application out of time and removing the limit imposed on recovery by the plaintiffs of their costs of trial by the Supreme Court Scale of Costs on Item 13, should not have been made. The application should have been dismissed."
(Page 6)
12 On 8 July 2004 Feinauers, solicitors for the plaintiffs, wrote to my Associate referring to the submission of the fourth defendant and noting no submission was filed by the third defendant and no intention to oppose the plaintiff's application had been indicated by him. The plaintiff's solicitors submitted that the submission of the fourth defendant raised no ground which had not already been substantively addressed before me on 27 May and that although if I was minded to hear oral submissions for the fourth defendant they would attend, the matter could be dealt with in terms of the "springing orders" made by me on 31 May.
13 I had my Associate inform Feinauers that I intended to deal with the matter on the papers and requested them to advise the other parties of that. They did so by letter dated 8 July 2004, a copy of which was forwarded to my Associate.
14 By facsimile letter to my Associate dated 9 July 2004, Williams & Hughes, solicitors for the first and second defendant, acknowledged that advice and wrote that on the plaintiff's application for a special costs order the Court had not been made aware of the inconsistency between the Legal Practice Act and the RSC. They said the issue had not come to their attention prior to the hearing, and submitted that the Court might be assisted by hearing further submissions on that discrete issue. On the basis that I wished to deal with the matter on the papers they advance the following:
"1. The primary difference between the position under Order 66 rule 12(1) and the Legal Practice Act 2003 is that the words 'or for any other good or sufficient reason' have been removed by the Act. It is clear, that the authorities decided in the previous rules or similar rules support the fact that, if the amount of work done appears to have been reasonable and to exceed the Scale that does constitute a good or sufficient reason for the making of an order: see Esther Investments Pty Ltd-v-Markalinga Pty Ltd (1992) 8 WA 400 (sic) @ 404 and Seaman on Civil Procedure para 66.12.1A.
2. It is quite clear that Parliament has considered it appropriate to restrict the discretion of the Court in awarding costs above the Scale, and has restricted the Court's ability to lift the Scale into circumstances where the legal costs determination is inadequate because of either (sic):
(Page 7)
- 2.1 unusual difficulty;
2.2 unusual complexity; or
2.3 unusual importance of the matter.
- 3. We simply adopt the submissions previously made on behalf of the first and second defendants in relation to this action not being a matter of unusual difficulty, complexity or importance.
4. It is submitted that it is clear Parliament's intention was to impose a restriction on the cases in which an order lifting the Scale was made. The mere fact that work which performed which appears to have been reasonable exceeded the Scale is insufficient."
15 On 12 July 2004 Feinauers wrote to my Associate pointing out the assertion by Williams & Hughes that the s 215 issue had not been raised at the hearing on 27 May was not correct and referring to the plaintiff's outline of written submissions in support of the application pursuant to O 66 r 12(1). Paragraphs 11 – 13 of that outline specifically dealt with the issue of s 215. Feinauers accordingly submitted the scope of the orders made previously did not allow for any further submissions being entertained touching on that particular point in light of the previous opportunity afforded to the first and second defendants to be heard on the issue.
16 By facsimile message dated 12 July 2004 Williams & Hughes acknowledged that Feinauers were correct and withdrew the comments made in their facsimile of 9 July.
17 Quite coincidentally, the conflict between O 66 r 12(1) RSC and s 215 of the Legal Practice Act and the question of the applicability of those provisions to certain proceedings, had already arisen and were the subject of submissions in an unrelated matter before me. My decision on that application has been handed down today: SDS Corporation Ltd v Pasdonnay Pty Ltd & Anor [2004] WASC 26(S2) and I do not need to repeat here what I have said there about this issue.
18 Unlike the situation in SDS v Pasdonnay (supra), where judgment was not delivered until after the Legal Practice Act came into operation on 1 January 2004, in this case judgment was delivered on 24 March 2003 and a supplementary judgment in which I ordered the defendants to pay
(Page 8)
- the plaintiffs' costs was handed down on 14 July 2003. The plaintiffs' right to costs became a vested right on 14 July 2003 at the latest. Section 215 is not to be given a retrospective operation which would affect that right (CIBC Wood Gundy Australia Ltd & Anor v ICL Australia Pty Ltd [1999] WASC 93; SDS v Pasdonnay).
19 That is the view I took in my reasons for judgment of 27 May 2004 (at [44]). I also said that I did not think s 215 had effected any substantial change to the law in this area. I was there referring to the situation where a matter was of such unusual difficulty as to justify an increase in or removal of a costs limit. A case which would fall within that category, it seemed to me, would also be one which would fall within the category of there being "a good or sufficient reason" for increasing or removing a costs limit.
20 I went on to point out (at [45]) that s 215 is narrower in effect than O 66 r 12(1) because it does not include "any other good or sufficient reason" (and the words "unusual difficulty" are obviously much more limited in scope). I did refer to s 215 as allowing an increase in costs in only three circumstances, namely unusual difficulty, unusual complexity or unusual importance, but that observation was obiter and for the reasons given in SDS v Pasdonnay (at [106]) I have on reflection come to the view that the adjective "unusual" applies only to "difficulty". The word "or" is disjunctive, so that what must be shown is unusual difficulty, or complexity or importance.
21 The further submissions now made by the fourth defendant go only to the issue of the application of s 215 of the Legal Practice Act. For the reasons I have given above and in SDS v Pasdonnay I have come to the conclusion that s 215 does not apply to the plaintiff's application here.
22 In my reasons for decision of 27 May 2004 (at [45] – [49]) I allowed the plaintiff's application because I was satisfied the work necessarily and reasonably done in preparation was greater than that contemplated by the scale, by reason of the degree of complexity and/or difficulty which extended well beyond that which would be regarded as ordinary. Those conclusions are sufficient to warrant an order removing the costs limit pursuant either to O 66 r 12(1) or s 215 of the Legal Practice Act.
23 In the circumstances there is no reason judgment cannot be entered in accordance with these reasons and those delivered on 27 May 2004.
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