BIGGINS -v- KEVIN PENKIN AND ASSOCIATES [2001] WASC 163

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 163
Case No:	CIV:1185/2001	Heard:	22 MAY 2001
Coram:	WHEELER J	Delivered:	26/06/01
No of pages:	9	Judgment Part:	1 of 1
Result:	Application allowed in part
PDF Version

Parties:	STEPHEN JOHN BIGGINS KEVIN PENKIN AND ASSOCIATES
Catchwords:	Costs Written agreement Matters relevant to taxing officer Costs Written agreement Unreasonableness
Legislation:	Nil
Case References:	Nil Alman v Macdonald Rudder [2001] WASC 65 Portch v Fanconi (1994), unreported; SCt of WA (Seaman J); Library No 940174; 31 March 1994 Retail Equity Pty Ltd & Ors v Murie and Edwards (No 1), unreported; SCt of WA (White J) ; Library No 940163; 31 March 1994

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BIGGINS -v- KEVIN PENKIN AND ASSOCIATES [2001] WASC 163 CORAM : WHEELER J HEARD : 22 MAY 2001 DELIVERED : 26 JUNE 2001 FILE NO/S : CIV 1185 of 2001 BETWEEN : STEPHEN JOHN BIGGINS

Plaintiff

AND

KEVIN PENKIN AND ASSOCIATES

Defendant

Catchwords:

Costs - Written agreement - Matters relevant to taxing officer

Costs - Written agreement - Unreasonableness

Legislation:

Nil

Result:

Application allowed in part

(Page 2)

Representation:

Counsel:

Plaintiff : Mr G P Mohen

Defendant : Mr S V Forbes

Solicitors:

Plaintiff : Friedman Lurie Singh

Defendant : Paiker & Overmeire

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

Nil

Case(s) also cited:

Alman v Macdonald Rudder [2001] WASC 65
Portch v Fanconi (1994), unreported; SCt of WA (Seaman J); Library No 940174; 31 March 1994
Retail Equity Pty Ltd & Ors v Murie and Edwards (No 1), unreported; SCt of WA (White J) ; Library No 940163; 31 March 1994

(Page 3)

1 WHEELER J: This is a summons to set aside an agreement as to costs between the plaintiff and the defendant made in relation to certain criminal injuries compensation and employment related matters, which were dealt with in one agreement. Affidavits have been filed both by the plaintiff and the defendant. There are significant factual disputes concerning the circumstances in which the agreement was entered into, and representations made before, during and after the currency of the plaintiff's retainer of the defendant. No order was sought for cross-examination of witnesses and it is conceded by the plaintiff that he bears the burden of establishing unreasonableness and that he cannot therefore rely upon those portions of his affidavits which are disputed by the defendant. In the end, I am left with a bare chronology, the agreement itself, and the practitioners' bills of costs purportedly served pursuant to that agreement. Those matters can be fairly briefly stated.

2 The plaintiff entered into two cost agreements with the defendant at different times. The first, on 21 June 2000, was entered into in somewhat unusual circumstances. The plaintiff had been convicted of assault occasioning bodily harm in the Court of Petty Sessions and the solicitor who had represented him in that hearing had commenced an appeal…

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: [2001] WASC 163
Decision Date

CaseChat Overview and Summary

The case of Biggins v Kevin Penkin and Associates, which came before Wheeler J in the Supreme Court of Western Australia, involved a dispute over a written costs agreement between the plaintiff, Stephen John Biggins, and the defendant, Kevin Penkin and Associates. The plaintiff sought to set aside the agreement as unreasonable, arguing that the estimated costs for the criminal injuries compensation claim and the Industrial Relations Commission matter were significantly overestimated and contained erroneous information regarding recoverable costs. The primary legal issues before the court were whether the costs agreement was inherently unreasonable and whether it should be set aside based on the discrepancies and errors contained within it.

Wheeler J examined the evidence presented and the nature of the claims involved, particularly focusing on the criminal injuries compensation matter. The court found that while the plaintiff had not discharged the burden of proving the agreement was unreasonable in relation to the Industrial Relations Commission matter, the agreement pertaining to the criminal injuries compensation claim contained significant errors and misstatements that were critical for the plaintiff to consider. The court noted that the estimated costs for the criminal injuries compensation claim were excessively high and that it was erroneous to suggest that any costs would be recoverable from any other party. These errors led the court to conclude that the agreement must be set aside in part.

In conclusion, Wheeler J set aside the portion of the costs agreement relating to the criminal injuries compensation matter and ordered that the costs of that matter be taxed in the ordinary way. The court ruled that each party should bear their own costs of the application, acknowledging the complexity and significance of the arguments presented.

Orders