Argentieri v TUDORSHINE Pty Ltd - [2001] WADC 31

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ARGENTIERI & ANOR -v- TUDORSHINE PTY LTD [2001] WADC 31

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 8 DECEMBER 2000

DELIVERED : 22 FEBRUARY 2001

FILE NO/S: CIVO 232 of 1999

BETWEEN: NAZZARENO ARGENTIERI
STEPHANIE ARGENTIERI
Applicants
AND
TUDORSHINE PTY LTD
Respondent

Catchwords:

Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of Taxation of Costs - Costs of originating summons seeking leave to appeal under s 41 of the Builders Registration Act - Consideration of the appropriate scale

Legislation:

Builders Registration Act 1939

Rules of the Supreme Court of Western Australia

Result:

Appropriate scale is the Supreme Court Scale of Costs

Representation:

Counsel:

Applicants: Ms A J Crichton-Brown
Respondent: Mr S E Fley

Solicitors:

Applicants: Ilbery Barblett
Respondent: Jackson McDonald

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

Nil

Case(s) also cited:

Donabray Pty Ltd v Wardman & Anor [2000] WADC 27
Email Limited v Kaddour Weston Milling (A division of George Weston Foods), unreported; SCt of NSW CA; BC9601098; 27 March 1996
Grigoletto v Myer Properties WA Pty Ltd, unreported; DCt of WA; Library No 3667; 31 March 1993
Matthews v Christy [2000] WADC 35
Sellman and Others v Boorn and Another 151 ER 1158

DEPUTY REGISTRAR HARMAN: In this action the respondent obtained an order for costs. The respondent's bill was taxed and each of the parties have objected to determinations made in the course of taxation.
Before dealing with the terms of each objection I will canvass some salient points which arise from a review of the file.
The action was commenced by way of an originating summons by which leave was sought to appeal a determination of the Building Disputes Committee, an entity established under the Builders Registration Act 1939. Ultimately the application was dismissed and the applicants were ordered to pay the respondent's costs. The respondent filed a bill of costs in which it made a claim under item 21 of the Supreme Court Scale in the amount of $13,722. Prior to taxation of that bill the respondent filed an amended bill of costs which is expressed to be drawn under the District Court Appeals Scale by which it made claims under items 2, 3, 4, 6, and 7(b) of that scale to a total of some $6,500. It was the amended bill which was taxed.
At taxation the first task was to determine the appropriate scale. Despite the fact that the bill upon which the respondent relied was drawn under the District Court Appeals Scale and that it may be implicit that the respondent had abandoned any claim to taxing the bill under the Supreme Court Scale, it was my opinion that the bill was incorrectly drawn under the District Court Appeals Scale and that taxation would proceed under item 21 of the Supreme Court Scale. On the basis of the submissions made by the parties in relation to quantum I determined that of the maximum available under the relevant scale the respondent was entitled to recover $6,500. That determination reflected my view of the extent to which services were rendered by the respondent's solicitors and the relative complexity of the matter.
Turning to the objections of the parties, the applicants contend for three reviewable errors. The first is that the appropriate scale for taxation was the District Court Appeals Scale. The ground of that objection is that although the action was commenced by way of originating summons and despite the terms of the Court's order, in substance the application was an appeal and that it was appropriate to consider the substance not the form.
Ultimately the objection is met by s 41 of the Builders Registration Act 1939 which provides that an appeal from the determination of the Building Disputes Committee is available only in the event of a grant of leave being made. Regardless of the prospect that the grounds of the appeal may have been canvassed for the purposes of a consideration of a grant of leave, it appears to me that by the terms of its order the Court has articulated the fact that it was an application for leave that was determined rather than the appeal. The action taken by the Court accords with the relevant provision of the Act.
In my opinion the applicants have not established that there was any error in principle in determining that the appropriate scale was the Supreme Court Scale. If I had otherwise determined I would have erred.
The applicants' second ground of appeal deals with quantum. The applicants contend that the determination made in relation to quantum exceeds the determination that could have been made under the District Court Appeals Scale. In essence the second ground depends upon the success of the first. It follows that the objection on that ground can not be sustained.
The applicants' third allegation of error is again in relation to quantum. It is implicit that the error alleged relates to the determination of quantum under the Supreme Court Scale.
At this stage it is appropriate to record that the determination made in relation to quantum was made within the range provided in the version of the scale provided in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996 which is expressed to be to a maximum of $6,900.
The allegation of error is that the determination made was so high as to allow the Court to draw an inference that an error of principle had been made in that determination.
The jurisdiction for the taxing officer to review a determination made at taxation is limited. It is provided by O 66 r 53, the relevant parts of which are as follows:
"(1)A party who contends the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may at any time before certificate of taxation finally dealing with that item is signed …"
The first task in dealing with any matter where jurisdiction is limited is to establish the existence of jurisdiction to deal with the matter. In my opinion O 66 r 42 establishes that there is a distinction between items and fees. There is a distinction which is properly to be drawn between items (or parts of an item) and the fees for those items. Items whether in the scale or a bill refer to services for which the Rules would permit the recovery of a fee. The first step in taxation is to consider whether the item in the bill by which a claim is made for services provided ought to be allowed. The second is to determine the fee for those services for which allowance has been made. By r 53 review is available with respect to the first determination but only when the alleged error engages principle. There is no jurisdiction to review alleged errors in relation to the second. That is not to suggest that there is no scope for error in making the second.
I accept that judges of this Court in determining the existence of jurisdiction under r 55, which is in similar terms, appear to favour the view that there is jurisdiction to review quantum determinations. It appears to me that in so finding they would prefer to follow either the Rules that apply in other jurisdictions or case law emanating from those jurisdictions in which the Rules provide scope for more comprehensive review. That is despite the fact that whereas in other jurisdictions the course of amendment of the relevant rule has been to a more broadly framed rule, in this jurisdiction the only amendment has been to tighten the scope of review by the necessity for the contended error to be one which engages principle. That is their prerogative. It is my determination that r 53 does not provide jurisdiction for the taxing officer to review quantum determinations.
It follows that the applicants cannot succeed on that objection.
In any event the only significant issue raised by the third objection is as to the lack of complexity associated with the application. By inference that lack of complexity was demonstrated by the relatively narrow scope of the law engaged by the application and that the relevant findings of fact may be considered to have been limited to the statement of account constructed by the Building Disputes Committee. Despite those assertions which I recall were also advanced at the taxation, it was my view that the application was complex simply as a result of the need to canvas myriad facts in order to consider whether the determination of the Building Disputes Committee revealed any error. For what it is worth, I consider that the application warranted a determination close to the maximum.
The applicants are unsuccessful.
The respondent's objection is that the relevant determination in relation to quantum was made under the incorrect version of the Supreme Court Scale. It asserts that the action was commenced subsequent to the commencement of the operation of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 1999. Under that version of the scale the maximum for item 21 was $15,000 not $6,900. Accordingly the respondent seeks to have the determination of quantum set aside and substituted by a determination made under the appropriate version of the scale.
The respondent is correct in its contention. As I have already indicated, the determination in relation to quantum was made by reference to the 1996 determination.
As a result of the actions taken by each of the parties in objecting to the determination the taxation has not been completed as the certificate has not been signed. Upon recognising that the taxation proceeded under the incorrect determination, in my opinion I have jurisdiction to tax the bill under the correct version of the scale. As to that determination I consider that the applicants would have the right to seek a review and accordingly I recognise that it would be inappropriate for me to now sign any certificate founded upon that determination without giving the applicants the opportunity to object.
In making a determination in relation to quantum under the Committee's 1999 determination I have considered the information available by way of documentation which is upon the file including the evidence of the parties, their submissions and the reasons for decision which support the dismissal of the application. I have considered the maximum available under the scale and the schedule attached to the bill that the respondent originally filed. I have considered the submissions made in relation to quantum.
I have determined that the fees recoverable by the respondent under the relevant item are $9,000.
In light of the observation that I previously made as to the prospect of an application to review my determination in relation to the item, I do not propose to sign any certificate in relation to that determination until 14 days from the date of the publication of this determination.