B P M Pty Ltd v Douglas - [2000] WADC 61

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: B P M PTY LTD -v- DOUGLAS [2000] WADC 61

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 15 FEBRUARY 2000

DELIVERED : 1 MARCH 2000

FILE NO/S: CIV 2130 of 1996
CIV 2131 of 1996
CIV 2132 of 1996

BETWEEN: B P M PTY LTD
Plaintiff
AND
GREGORY STEWART DOUGLAS
Defendant

Catchwords:

Objections on taxation

Legislation:

Nil

Result:

Objection allowed as to disbursements

Representation:

Counsel:

Plaintiff: Mr H I Touyz
Defendant: Mr D Garnsworthy

Solicitors:

Plaintiff: Hammond King Touyz
Defendant: Kott Gunning

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

Brown v Brambles Australia Limited, unreported; DCt of WA; Library No D980121; 12 May 1998
Stobbart v Mocnaj & Ors [1999] WASC 252

Case(s) also cited:

Nil

DEPUTY REGISTRAR HEWITT: On 9 November 1999 I taxed the plaintiff's Bill of Costs in these actions and on 24 November 1999 the defendant filed notice of objection to various items in the taxation.
The objections were listed for hearing before me in January on a date which was vacated due to the illness of another Registrar and ultimately came before me for hearing on 15 February 2000. The Bill of Costs comprised a conglomerate of three separate cases each proceeding between B P M Pty Ltd and respectively Messrs Douglas Chamberlain and Cross. The bill was presented in that form pursuant to an order of her Honour Judge Yeats.
The case involved an action by the plaintiff (which is the accounting entity Messrs Bird Cameron) against three of its former employees seeking to enforce a liquidated damages claim against each of them in respect of their departure from the firm and what was alleged to be the poaching of various clients of the firm. The case involved serious issues to be tried and a number of varied defences were raised by the defendants to the actions. Amongst those issues was an issue that the defendants had been subject to duress which induced them to enter the contracts the subject of the plaintiff's claim. There was additionally an allegation of a breach of the Trade Practices Act and a further argument that the plaintiff was disentitled to its claim for liquidated damages by virtue of the fact that it was unable to provide accounting services to the clients who had followed the defendants. Additionally there was an argument that the plaintiff was not an entity which had suffered loss by virtue of the breach of the contract and the case was therefore incompetent, and also an argument that as a consequence of its involvement in earlier litigation with a third party (allegedly) adverse findings against the plaintiff in that litigation had breached its contract of employment and it was thus disentitled to enforce its contract of employment against the various defendants. In addition to those issues there was the usual issue of whether or not the clause upon which the plaintiff relied in the action was an enforceable liquidated damages clause or whether it constituted…

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.

Continue reading B P M Pty Ltd v Douglas

Details

AGLC: B P M Pty Ltd v Douglas [2000] WADC 61
Case: [2000] WADC 61
Decision Date

CaseChat Overview and Summary

In the District Court of Western Australia, B P M Pty Ltd, represented by Bird Cameron (the plaintiff), brought proceedings against Gregory Stewart Douglas (the defendant) to enforce a liquidated damages claim against him for his departure from the firm and the alleged poaching of clients. The case involved various complex issues, including duress, breach of the Trade Practices Act, and the enforceability of the liquidated damages clause. The Deputy Registrar Hewitt was responsible for taxing the plaintiff's Bill of Costs. The defendant objected to various items in the taxation, leading to a hearing on 15 February 2000.

The objections primarily concerned the Deputy Registrar's assessment of the costs for preparing the case, the involvement of senior counsel, and the photocopying expenses. The Deputy Registrar justified the costs for preparing the case by highlighting the complexity of the litigation and the need for significant preparation. Regarding senior counsel's involvement, the Deputy Registrar considered the eminence of the counsel and the amount of time spent on mastering the brief and preparing for trial. The Deputy Registrar also addressed the objection to the photocopying expenses, acknowledging an error and agreeing to reduce the amount allowed.

The Deputy Registrar dismissed most objections, finding the costs to be reasonable and necessary given the complexity of the case. The only successful objection was related to the photocopying expenses, which were reduced by $1,000. The Deputy Registrar also ruled on the costs of the objections hearing, allowing $1,000 to the plaintiff and granting the defendant 21 days to appeal.

Orders