Bend-Tech Group (A Firm) v Beek
[2015] WASC 491 (S2)
•11 APRIL 2016
BEND-TECH GROUP (A FIRM) -v- BEEK [2015] WASC 491 (S2)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 491 (S2) | |
| Case No: | CIV:2819/2015 | 11 APRIL 2016 | |
| Coram: | PRITCHARD J | 11/04/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Defendant to pay plaintiff's costs to be taxed if not agreed | ||
| 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
- 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 read in conjunction with the Decision.
2 In reasons I have just published,2 I refused Mr Beek's indemnity costs application, but granted the special costs application.
3 Mr Beek now seeks an order that Bend-Tech pay his costs of the Costs Application, to be taxed if not agreed. The application is opposed by Bend-Tech. Bend-Tech contends that the order which should be made is that Mr Beek pay 75% of Bend-Tech's costs of defending the Costs Application or, alternatively, that each party bear their own costs in respect of the Costs Application.
4 In my view, the appropriate costs order is that Bend-Tech pay Mr Beek's costs of the Costs Application, to be taxed if not agreed. My reasons for that conclusion are as follows.
5 The Court's discretion in respect of costs orders is a very wide one, though it must, of course, be exercised judicially.3 The starting point is that costs will ordinarily follow the event.4
6 In this case, Mr Beek was successful in his special costs application, but not successful in the entirety of his Costs Application, in that Mr Beek was not successful in his indemnity costs application. (The orders sought in the Costs Application were in the alternative, so it was not possible for both of those orders to be made.)
7 The primary basis for Bend-Tech's opposition to the costs order now sought by Mr Beek is that the indemnity costs application resulted in a discrete and significant portion of the total costs expended in respect of the Costs Application, and that Mr Beek was ultimately unsuccessful in that part of the Costs Application.
8 The Court is ordinarily loath to enter into attempts to apportion costs in cases where a party succeeds on some of the arguments raised, but not all. The reasons for that general approach were alluded to by Beech J McKay v Commissioner of Main Roads [No 7].5 As his Honour observed, it is to be expected that a party may not succeed on each and every argument which it advances as the basis for the relief that it seeks.6 There may be exceptions to that general approach (for example, if, by raising a particular argument which has not succeeded, a party has significantly increased the duration of a hearing).
9 In the present case, while I accept that some time, no doubt, was involved in responding to the indemnity costs application, I am not persuaded that the costs of doing so can readily be separated from those incurred in responding to the special costs application, as counsel for Bend-Tech submits.
10 The special costs application proceeded on the basis that such an order was justified, having regard to the importance of the case to the parties, or the complexity of the issues involved. The question of complexity, and, to a lesser extent, that of the importance of the case to the parties, required consideration of the totality of Bend-Tech's application for an interlocutory injunction. In my view, there was a considerable degree of factual overlap between the questions of complexity and of the importance of the case as they pertained to the special costs application on the one hand, and the argument advanced by Mr Beek in support of his indemnity costs application on the other hand. In those circumstances, it is not appropriate to endeavour to engage in a precise apportionment of costs between the two alternative costs applications, much less to make an order that Mr Beek should pay Bend-Tech's costs. In the result, Mr Beek has been successful in persuading the Court to make a special costs order. It matters not that the special costs order that was made was an order pursuant to s 280(2) of the Legal Profession Act, as opposed to an order for costs on an indemnity basis.
11 Accordingly, the appropriate costs order is an order that Bend-Tech pay Mr Beek's costs of the chambers summons dated 22 February 2016, to be taxed if not agreed.
1Bend-Tech Group (A Firm) v Beek [2015] WASC 491.
2Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S).
3Naidoo v Williamson [2008] WASCA 179 [39], [42].
4Rules of the Supreme Court 1971 (WA), O 66 r 1(1). See Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [22].
5McKay v Commissioner of Main Roads [No 7] [2011] WASC 223(S) [179].
6McKay v Commissioner of Main Roads [No 7] [2011] WASC 223(S) [179].
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