BEND-TECH GROUP (A FIRM) -v- BEEK [2015] WASC 491 (S2)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 491 (S2)
Case No:	CIV:2819/2015	Heard:	11 APRIL 2016
Coram:	PRITCHARD J	Delivered:	11/04/16
No of pages:	5	Judgment Part:	1 of 1
Result:	Defendant to pay plaintiff's costs to be taxed if not agreed
Category:	B
PDF Version

Parties:	BEND-TECH GROUP (A FIRM) ANDREW DAVID BEEK
Catchwords:	Practice and procedure Costs Whether appropriate to apportion costs between two costs applications Where only one costs application is ultimately successful Where costs applications made in the alternative
Legislation:	Legal Profession Act 2008 (WA), s 280(2) Rules of the Supreme Court 1971 (WA), O 66 r 1(1)
Case References:	Bend-Tech Group (A Firm) v Beek [2015] WASC 491 Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S) McKay v Commissioner of Main Roads [No 7] [2011] WASC 223(S) Naidoo v Williamson [2008] WASCA 179 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BEND-TECH GROUP (A FIRM) -v- BEEK [2015] WASC 491 (S2) CORAM : PRITCHARD J HEARD : 11 APRIL 2016 DELIVERED : 11 APRIL 2016 FILE NO/S : CIV 2819 of 2015 BETWEEN : BEND-TECH GROUP (A FIRM)

Plaintiff

AND

ANDREW DAVID BEEK

Defendant

Catchwords:

Practice and procedure - Costs - Whether appropriate to apportion costs between two costs applications - Where only one costs application is ultimately successful - Where costs applications made in the alternative

Legislation:

Legal Profession Act 2008 (WA), s 280(2)

Rules of the Supreme Court 1971 (WA), O 66 r 1(1)

Result:

Defendant to pay plaintiff's costs to be taxed if not agreed

Category: B

Representation:

Counsel:

Plaintiff : Mr C J Graham

Defendant : Mr M D Cox

Solicitors:

Plaintiff : Borrello Graham Lawyers

Defendant : MDC Legal

Cases referred to in judgment:

Bend-Tech Group (A Firm) v Beek [2015] WASC 491
Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S)
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223(S)
Naidoo v Williamson [2008] WASCA 179
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

PRITCHARD J

(This judgment was delivered extemporaneously on 11 April 2016 and has been edited from the transcript.)

1 By chamber summons dated 22 February 2016, Mr Beek made an application for costs on two bases: that Bend-Tech pay his costs of the injunction application, to be taxed on an indemnity basis (the indemnity costs application); or, alternatively, that Bend-Tech pay his costs of the injunction application, to be taxed if not agreed, without regard to the upper limits of the Supreme Court's Scale of Costs 2014, pursuant to s 280(2) of the Legal Profession Act 2008 (WA) (LP Act) (the special costs application) (collectively, the Costs Application). Those orders were sought in light of my earlier decision to dismiss Bend-Tech's application for an interlocutory injunction1 (the Decision). These reasons should be…

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: [2015] WASC 491 (S2)
Decision Date: 11 APRIL 2016

CaseChat Overview and Summary

In the matter of Bend-Tech Group (A Firm) v Beek, the Federal Court of Australia was tasked with determining the appropriate allocation of costs between the parties involved. The plaintiff, Bend-Tech Group, sought costs related to two separate applications, one of which was ultimately successful. The defendant, Beek, contested the costs application, arguing against the apportionment of costs between the two applications when only one was successful.

The primary legal issue before the court was whether it was appropriate to apportion costs between two costs applications when only one is successful. Additionally, the court had to consider the procedural context in which the costs applications were made, specifically that they were made in the alternative. The court needed to balance the principle that costs should follow the event with the procedural fairness of the applications.

In delivering its judgment, the court noted that the principle of costs following the event is well-established in Australian law. However, the court also acknowledged the procedural context of the applications, which were made in the alternative. The court found that, given the nature of the applications and the fact that only one was successful, it was appropriate to apportion the costs between the two applications. This decision was made in the interests of procedural fairness and to reflect the efforts made by both parties in their respective applications. The court concluded that the defendant should pay the plaintiff's costs, to be taxed if not agreed.

Orders

Orders of the court

Defendant to pay plaintiff's costs to be taxed if not agreed

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

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