Bride v Australian Bank Ltd
[2000] WASC 164
•20 JUNE 2000
BRIDE & ANOR -v- AUSTRALIAN BANK LTD & ORS [2000] WASC 164
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 164 | |
| Case No: | CIV:1570/1989 | 31 MAY 2000 | |
| Coram: | PARKER J | 20/06/00 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiffs to pay costs in each action as ordered | ||
| PDF Version |
| Parties: | EDWARD JAMES BRIDE WENDY MARGARET BRIDE as Trustees of the Pinwernying Family Trust AUSTRALIAN BANK LTD SOUTHERN ROLLED OATS PTY LTD SOUTHERN FOODS (1986) PTY LTD MILNE FEEDS PTY LTD PEAT MARWICK MITCHELL |
Catchwords: | Costs on trial |
Legislation: | Nil |
Case References: | Bride & Anor v Hammond Fitzgerald & King, unreported; FCt SCt of WA; Library No 960160; 26 March 1996 Bride & Anor v KMG Hungerfords (A Firm), unreported; FCt Federal Court; 23 April 1998 (No WAG 149 of 1997); Judgment No 412/98 Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Stobbart v Mocnaj [1999] WASC 252 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : BRIDE & ANOR -v- AUSTRALIAN BANK LTD & ORS [2000] WASC 164 CORAM : PARKER J HEARD : 31 MAY 2000 DELIVERED : 20 JUNE 2000 FILE NO/S : CIV 1570 of 1989 BETWEEN : EDWARD JAMES BRIDE
- WENDY MARGARET BRIDE as Trustees of the Pinwernying Family Trust
Plaintiffs
AND
AUSTRALIAN BANK LTD
First Defendant
SOUTHERN ROLLED OATS PTY LTD
SOUTHERN FOODS (1986) PTY LTD
Second Defendants
MILNE FEEDS PTY LTD
- Third Defendant
- WENDY MARGARET BRIDE as Trustees of the Pinwernying Family Trust
Plaintiffs
AND
PEAT MARWICK MITCHELL
- Defendant
(Page 2)
Catchwords:
Costs on trial
Legislation:
Nil
Result:
Plaintiffs to pay costs in each action as ordered
Representation:
CIV 1570 of 1989
Counsel:
Plaintiffs : In person
First Defendant : Ms C H Thompson
Second Defendants : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiffs : In person
First Defendant : Freehill Hollingdale & Page
Second Defendants : No appearance
Third Defendant : No appearance
CIV 1804 of 1989
Counsel:
Plaintiffs : In person
Defendant : Ms C H Thompson
(Page 3)
Solicitors:
Plaintiffs : In person
Defendant : Freehill Hollingdale & Page
Case(s) referred to in judgment(s):
Bride & Anor v Hammond Fitzgerald & King, unreported; FCt SCt of WA; Library No 960160; 26 March 1996
Bride & Anor v KMG Hungerfords (A Firm), unreported; FCt Federal Court; 23 April 1998 (No WAG 149 of 1997); Judgment No 412/98
Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Stobbart v Mocnaj [1999] WASC 252
Case(s) also cited:
Nil
(Page 4)
1 PARKER J: This decision is in respect of costs following my decision on the joint trial of these two actions. To a considerable degree the issues in the two actions were the same or substantially similar, although CIV 1570 of 1989 may reasonably be regarded as the primary action and the more extensive. CIV 1804 was derivative from it, as the defendant, Peat Marwick Mitchell was sued essentially for the conduct of two of the firm's partners as receivers and managers appointed by and under securities of the first defendant in CIV 1570 of 1989, Australian Bank Ltd ("the Bank").
2 In CIV 1570 of 1989 there is no issue concerning the costs of the second and third defendants. Neither participated in the joint trial. As against the first defendant, the Bank, the plaintiffs' claims failed entirely, both because the plaintiffs had no standing in the capacity in which they sued and, that issue aside, on the substantive merits of the claims they had pursued.
3 In CIV 1804 of 1989 the plaintiffs succeeded on one limited aspect of their claim, a claim in trespass, but this was not shown to have caused the very substantial damages sought, those damages being in essence the same as those claimed in the other action. In all other respects the plaintiffs' claims failed, both because they had no standing to pursue them in the capacity in which they sued and, that issue aside, on the substantive merits of the claims they had pursued.
4 In fact, Peat Marwick Mitchell are totally indemnified for their costs of defending CIV 1804 of 1989 by the Bank.
Should Costs Be Awarded
5 The plaintiffs submit that no order for costs should be made against them at all and certainly no order in respect of the action concerning Peat Marwick Mitchell. The submissions advanced in support of this were wide ranging and there is no need to deal specifically with all aspects of what was touched on. In essence, it was contended that the plaintiffs had only been concerned to expose the wrongs they considered had been done to them by the Bank and Peat Marwick Mitchell. The limited finding in their favour in the action against Peat Marwick Mitchell was, it was submitted, sufficient to vindicate their pursuit of the two actions, particularly as it had been accepted in my decision that they had been served with notices of appointment of the two partners of Peat Marwick Mitchell as receivers and managers under two of the Bank's securities on 9 August 1984 when those appointments were not made until
(Page 5)
- 22 August 1984. Reliance was also placed on another finding that the Bank had, without justification or genuine belief, asserted at times following 9 August 1984 that the business which the plaintiffs unsuccessfully claim to have owned and conducted in the capacity in which they sued had been owned and conducted by two companies (of which the plaintiffs were sole directors) at the relevant times.
6 It was further contended that the claims raised and pursued by the plaintiffs in the two actions in truth came back to two basic issues. These were trespass and standing. The point of this submission seemed to be that in effect that the plaintiffs had succeeded on one of these but not the other so that each side might reasonably bear its own costs.
7 The submissions of the plaintiffs in my view are not founded in a reasonable or realistic appreciation of the nature and extent of the issues raised by these claims, nor of the extent to which they failed. The attempt to see the actions as involving only two issues was quite unrealistic. Further, whatever be the motivations for the plaintiffs in commencing and pursuing the two actions to trial, the outcome is that their claims very substantially failed. My reasons for decision in the actions have dealt with the two particular findings now relied on and the relevance of those findings to the issues in the two actions. I need not canvass again what was said in the principal reasons. While I can understand that the plaintiffs may place much significance on these matters, for the purposes of the present applications I am unable to give to them the significance and weight for which the plaintiffs contend.
8 In the result, I am not persuaded that there is shown to be any sufficient justification why the general principle that costs should follow the event should not be applied. The success of the plaintiffs on the one, albeit limited, issue of trespass is of sufficient significance in this litigation, however, for there to be some modification of the application of the general principle.
9 One approach, indeed the usual approach, would be to order that the plaintiffs have their costs of the cause of the action trespass with the defendants to have their costs of all other causes of action. Neither party suggests this should be the order in the present case and for very good reason. While the issue may be readily identified, the facts, the evidence and the witnesses relevant to it to a large degree may not be readily identified and segregated from those relevant to the other issues in the action. Such an order would, in the circumstances of this case, be most difficult to apply in practice and could be expected to add very
(Page 6)
- considerably to the cost and complexity of taxation and there can be no reasonable prospect of a satisfactory outcome.
10 I am persuaded, therefore, to follow the approach proposed by the defendants of a special order whereby a percentage reduction of Peat Marwick Mitchell's assessed costs of conducting CIV 1804 of 1989 be ordered as a reflection of the costs to which the plaintiffs would otherwise be entitled in respect of their claim in trespass. It is not possible to bring any precise mathematical formula to the determination of this percentage. It is necessarily a matter of general assessment. Peat Marwick Mitchell ventured that perhaps a 10 per cent reduction could be appropriate. The plaintiffs suggested no percentage, but clearly saw this issue as of central and considerable significance. I bear in mind that the same trespass was also raised against the Bank in CIV 1570 of 1989, but failed in that action.
11 I must be guided by my general appreciation of the relevance and place of this issue and of the time and effort reasonably devoted to it in the preparation of the case of Peat Marwick Mitchell in CIV 1804 of 1989 and at trial. In my view a costs allowance reasonably attributable to this issue in that action would be 15 per cent. In my view the costs of Peat Marwick Mitchell, when taxed in accordance with these reasons, should be reduced by 15 per cent and allowed against the plaintiffs at that reduced level because of the issue of trespass.
Separate Costs Orders
12 The Bank and Peat Marwick Mitchell submitted that their costs should be taxed entirely separately. Some very general indications were given, although only in the course of submissions, in support of this as to the apportionment that had been made between the costs billed to each of these defendants by their joint solicitors. The lion's share went to the Bank. This submission is opposed by the plaintiffs who contend this is simply a device to unfairly load costs into the action in which the Bank was entirely successful.
13 The joint trial of these two actions was ordered as long ago as 15 July 1994 which was very shortly after the plaintiffs' statements of claim were first accepted as competent. Until then the defences in the two actions can be seen to have been conducted essentially separately, but thereafter, while some aspects of the conduct of the respective defences required separate attention, in the main the two actions are realistically and substantially to be seen as having been prepared as one. That is not to suggest that all issues were common to both actions. That was not the
(Page 7)
- case, but to a significant degree the issues in CIV 1804 of 1989 were the same or substantially overlapping with many of the issues in CIV 1570 of 1989. In my view it is more realistic and fair for present purposes to view the preparation and conduct of the defence cases of both defendants from the order for joint trials as one, although I would limit this to work which is referable to scale items 13 Getting Up, 14 Counsel Fees and Solicitor Attending at Trial, Call-Over and Reserved Judgment, and 24 (previously 23A) Pre-trial, Mediation and other Conferences. From 15 July 1994 in respect of work referable to these items, the cost of the two defendants should be jointly taxed as in one action, and apportioned and allowed as between the two defendants on the basis of two thirds to the Bank in CIV 1570 of 1989 and one third to Peat Marwick Mitchell in CIV 1804 of 1989. In my view such an apportionment makes appropriate allowance for the extent to which the work and issues in CIV 1570 of 1989 are more extensive than those in the other action.
14 Apart from work referable to items 13, 14 and 24, there may well be costs incurred for work undertaken for both defendants, eg an appearance for both defendants by the one practitioner in chambers, which cannot readily be determined on taxation to be referable to one action or the other. In my view, where that proves to be the situation on taxation, it would be appropriate for the taxing officer to apportion and allow the assessed costs of that work in the proportions just indicated, ie two thirds to CIV 1570 of 1989 and one third to CIV 1804 of 1989.
Indemnity Costs
15 The defendants seek an order for costs from 26 March 1996 to be taxed and allowed on an indemnity basis. That was the date of the decision of the Full Court in Bride & Anor v Hammond Fitzgerald & King, unreported; FCt SCt of WA; Library No 960160; 26 March 1996 which confirmed the decision at trial of Scott J. That action was brought by the present plaintiffs in the same capacities as the present actions. To a significant degree they involved many of the same factual issues, although that action was against their own solicitors. Scott J found against the plaintiffs on the issue of standing and also on a number of other factual matters which were raised again in the present actions. The defendants rely, in particular, on my observations at [226] of the reasons for decision in the present actions where the view was expressed that the continued pursuit of these issues in a number of proceedings constituted an abuse of process. It is the defendant's submission that from the time of the Full
(Page 8)
- Court decision these present proceedings ought not to have been further pursued.
16 It has been held that an award of indemnity costs may properly be considered whenever it appears that an action has been commenced or continued in circumstances where the party, properly advised, should have known there were no chance of success. In such circumstances it has been held that the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of known facts or the clearly established law; Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401. There are, of course, other circumstances in which an indemnity costs order might be justified against a litigant, including, by way of examples, an unacceptable departure from the standard of conduct to be observed by litigants so that the litigation cannot be conducted in an expeditious way, where material evidence is deliberately concocted or there is other dishonest conduct by a party in the litigation, or where there is conduct with the predominant purpose of delaying inevitable liability. There are other special circumstances not relevant to the present case. It remains the position, however, that an order for costs to be taxed on an indemnity basis is not usual and is discretionary.
17 In the present case the plaintiffs were unrepresented throughout so there is an artificiality about applying to them a standard measured by reference to the position of the litigant who was properly advised. In particular, while it is the case that some issues had previously been tried on somewhat similar evidence and determined against them, there was an element of truly fresh evidence in this case, and the previous actions involved different defendants and different causes of action. The plaintiffs appear to have been genuinely enough intent, without the advantage of legal representation, on finding an appropriate means of achieving a remedy for the wrongs they perceived. Although their perceptions, especially about their standing and the merits of their claims, may not have been borne out, it is not the case that it can be said they commenced or pursued the litigation with other than an honestly held sense of genuine grievance. While aspects of their preparation and conduct of the case may have delayed its progress, it cannot be said that this was done for that purpose and, of course, the plaintiffs have had a limited measure of success.
18 Having regard to these matters I am not persuaded that it would be appropriate to make an order for costs to be taxed on an indemnity basis.
(Page 9)
Raised Limits
19 The defendant seeks to have the limits set by the scale, as applicable from time to time, lifted for the purposes of taxation. This is sought with respect to pleadings and particulars of pleadings, discovery and getting up.
20 The original pleadings of the plaintiff were lengthy, they purported to raise a variety of causes or action, but they were in many respects obscure in meaning and of doubtful legal effect. This is exemplified by the history by which the original statements of claim were struck out and over some years the plaintiffs tried unsuccessfully on a number of occasions to replead their cases before settling on forms of substituted statements of claim which could be regarded as sufficient and which were allowed to stand. These substituted statements of claim, however, were later further amended.
21 Hence, in each action, the defendant had to deal originally with a difficult, complex and defective statement of claim, which went through a number of reformulations before the defendants formally pleaded. Further, amendments to the defences were necessary because of later amendments to the statements of claim.
22 The scale upper limits for a defence (item 6(b)), before 25 October 1989 was $289.10, between 6 October 1989 and 31 March 1991 was $341.14, and from 1 April 1991 to 31 January 1997 was $1,000. Neither the figure of $289.10 nor $341.14 was an adequate limit within which to consider any work done toward the defences in these actions before 25 October 1989 and 31 March 1991 respectfully, given the nature and extent of issues raised by the original statements of claim. Given the actual events that followed, however, it is clear that most work was performed after 1 April 1991. Even so, I am persuaded that the normal upper limit of $1,000 applicable after that date was not adequate in these cases and I would fix an upper limit in CIV 1570 of 1989 of $2,000 and in CIV 1804 of 1989 of $1,500.
23 Included in these limits is a limited provision on account of the difficulties and delays in the filing of an adequate statement of claim in each action, but, for the most part, in my view the orders made for costs on the many interlocutory hearings relevant to the statements of claim would have made provision for those. I take a similar position with regard to the later amendments to the defences which were necessary because of further amendments to the statements of claim.
(Page 10)
24 With respect to particulars I have been satisfied that many requests for particulars were necessary in each action, some it seems with respect to proposed substituted statements of claim or contemplated amendments to the statements of claim. Some of these became the subject of interlocutory proceedings and costs orders, but not all. Given the extent and complexity of the need for particulars and the unusual history of these pleadings, I am satisfied that the scale limits are inadequate. It is not appropriate, however, for me to attempt to consider in detail what work was reasonably necessary at what times in each action and the extent to which existing costs orders have already made provision for this work. I propose, therefore, that with respect to particulars the taxing officer should determine what allowance is appropriate in each action and that, for this purpose, the normal limits prescribed by the scale should be removed.
Discovery
25 For practical purposes discovery was given by the defendants in both actions in late 1994 when the normal upper limits for each party was $580. In this case something over four and a half thousand documents were discovered between the two defendants. The discovery was also more complex than usual because of the range of relevant issues. It was also more difficult than usual, particularly in the case of the Bank, because of the considerable delay before the discovery was reached. This delay was largely because of the problems of the plaintiff in achieving a satisfactory statement of claim. Of course both the Bank and Peat Marwick Mitchell had separate documents.
26 I am satisfied that the normal limit was inadequate in each action for these reasons.
27 The defendants propose that the limit be lifted, in the case of CIV 1570 of 1989 to $8,000 and in CIV 1804 of 1989 to $2,000. I have not been persuaded that such allowances would be reasonable. There is little to provide a close guide, but from my appreciation of the size and complexity of the two discoveries I consider that upper limits of $6,000 in CIV 1570 of 1989 and $1,500 in CIV 1804 of 1989 will be adequate within which the taxing officer will be able to make an appropriate allowance in each action. The limits will be raised accordingly.
(Page 11)
Getting Up
28 The defendants seek an order that the upper limit for getting up be lifted to $150,000. This is in respect of the getting up of both actions. The defendants point to the wide range of issues and the considerable legal and factual complexity affecting some of them. They also submit that it fell to the defendants to do a significant amount of the preparation for trial, which would normally have been undertaken by the plaintiffs, because the plaintiffs did not have solicitors to do the necessary work. This included preparing very extensive sets of documents for trial - a substantial task.
29 Some getting up for trial occurred before 31 January 1997 for which the normal upper limit was $6,000 for the first $25,000 of the value of the matters in dispute plus 2 per cent for the balance. Most getting up occurred, however, after that date when the normal scale limit was $27,000, a limit calculated by reference to 100 hours work by a senior practitioner. There is no doubt that in this case, for the reasons given, such limits are inadequate. The complexity of some of the issues and their wide ranging nature, especially when both actions are considered as one for this purpose, would warrant in my view something approaching 400 hours work by a senior practitioner or the equivalent. Then there is the additional work the defendants undertook which would normally have been the responsibility of the plaintiffs. Most of this would not, of course, require the attention of a senior practitioner.
30 The defendants sought to justify a limit of $150,000 by reference to their overall charges to their clients. Some information as to these charges was provided orally in the course of submissions. I am not persuaded of the reliability of this approach for this purpose, particularly in the circumstances of this action. In particular, the charges were determined pursuant to written costs agreements the terms of which are not before me. Secondly, the issue is what fees should be met by the other party to the litigation. This involves the question of a reasonable allowance for costs on a party and party basis which requires an objective assessment, given the nature and circumstances of the action and the work reasonably required, rather than a subjective approach determined by the costs actually incurred on a solicitor and client basis. Of course, the latter may provide a useful guide to the former; NB Stobbart v Mocnaj [1999] WASC 252, but in this case the existence of written costs agreements, complications arising from the existence of two clients, and the fact that a number of persons of differing seniority were engaged in its performance,
(Page 12)
- do not enable me to be satisfied about the appropriateness of that approach.
31 Instead, it is preferable, in my view, to attempt an objective approach along the lines indicated a little earlier in these reasons, even though that is necessarily a broad brush approach, whilst keeping in mind the general level of charges actually made so far as that is revealed. This leads me to the view that an appropriate upper limit for all getting up in both actions, treated as one for this purpose, is the sum of $105,000, rather than the $150,000 sought. Such a limit ought to allow adequate scope to the taxing officer to assess and make a reasonable allowance. Subject to what follows I would fix the upper limit accordingly at $105,000.
32 I also direct, however, that, separately from and in addition to the fees otherwise allowed for getting up within the limit of $105,000 the taxing officer should make a reasonable allowance for the work undertaken by the defendants in preparing the pleadings and agreed documents for trial (including sets of amended pleadings necessitated because of amendments during the trial), which work would normally have been undertaken by the plaintiffs, and that this assessment and allowance should be made without specific limit and as if the first defendant in CIV 1570 of 1989, the Bank, were the plaintiff in both actions.
33 In the earlier stages of getting up, before 31 January 1997, the scale relied on the value of the subject matter for some purposes. The defendant seeks to have this fixed at the level of damages sought by the plaintiffs. While that is appropriate in most cases, it is somewhat complicated in these actions because of the need to assess damages and because the plaintiffs were not legally represented and sought in some respects damages calculated on an inappropriate basis. Essentially the same loss was relied on in each action. As my reasons have indicated, apart from the award of $500 for damages in trespass, I was not persuaded that the defendants had established any loss. That is so even had they established all causes of action. They did, however, hope to recover very substantial damages, on some basis, from one or other or both of the defendants, and the defendants were in this relevant sense at risk in the actions.
34 Even on a conservative appreciation of the plaintiffs' case with respect to damages in each action, it is realistic to put the amount in dispute at around $3,500,000. In the circumstances that is an appropriate figure to place on the value of the subject matter in dispute.
(Page 13)
Second Counsel
35 A certificate for second counsel is sought and will be granted. I am conscious of the apparent incongruity of a silk and junior opposed to unrepresented plaintiffs. But the issue is whether the nature and complexity of the actions warranted second counsel. In my view they did.
36 There are also applications for a special costs order to lift the normal scale limits for senior counsel because of the length of the trial and the complexity of the issues. In my view, in the circumstances of these actions, it would be appropriate to make an order for the taxing officer to assess and make a reasonable allowance for senior counsel, including preparation and conferences before trial, and for this purpose the normal limits will be removed.
Transcript and Witness Expenses
37 The defendants seek certificates for transcript and directions to the taxing officer with respect to allowances for two of their witnesses, one because he was a small business owner and the other an accountant who gave expert evidence. Under the current Fourth Schedule to the Rules, item 29 treats these matters as disbursements and a taxing officer may allow them if necessarily or reasonably incurred. These issues may properly be left to the taxing officer.
Courier Expenses
38 The defendants seek a direction to the taxing officer to make a reasonable allowance for courier expenses incurred because the plaintiffs' address for service was in Ardross and they lived in Katanning. The defendants' submissions sought to distinguish the decision in Stobbart v Mocnaj(Supra) at [34] where it was held that costs for routine postage, courier services, facsimile transmissions and the like are not recoverable as disbursements under the current scale. In particular that decision was sought to be distinguished on the basis that service other than in the city was not routine, and because it was often particularly important to ensure there had been formal service as the plaintiffs were not represented. In my view, for routine service of documents, the position remains as indicated in Stobbart v Mocnaj. There was, however, one situation clearly outside the range of routine service. Because the plaintiffs were unrepresented, it proved necessary for the defendants to undertake the preparation of the documents needed for trial. In all, several sets, each comprising some 23 Lever Arch folders, had to be prepared. This
(Page 14)
- occurred under my direction and with the full knowledge and cooperation of the plaintiffs. Because of the constraints of timing in my view it became necessary (although the plaintiffs seem to question this) for the plaintiffs to receive their set of these documents at Katanning urgently. A courier was engaged for this purpose. I would indicate my view, for the assistance of the taxing officer, that in the unusual circumstances indicated, the costs of this courier delivery to Katanning might properly be considered as reasonably incurred as a disbursement and might properly be allowed as such on party and party taxation.
Photocopying
39 Between 1 February 1997 and 30 June 1999 there was no special provision in the applicable scale for the costs of photocopying by the defendants' solicitors to be recovered on a party and party taxation. The defendants seek a special direction for the taxing officer to make a reasonable allowance at taxation for such costs as a matter of my general discretion. It is acknowledged that Stobbart v Mocnaj at [34] is against such an allowance as, in the absence of special provision in the scale or Rules, they are not a disbursement incurred by the defendants' practitioners. The defendants seek, nevertheless, a direction as a matter of general discretion as the amount of photocopying is said to have been greater than usual because the plaintiffs were unrepresented. In my view it would be inappropriate to make such an order.
Title of Action
40 Although not a matter of costs, one further application was made. The defendants seek an alteration to the title of the two actions by the deletion from the description of the plaintiffs in each action of the words "as Trustees of the Pinwernying Family Trust". It is submitted that the only time when it is appropriate to identify the capacity in which a party sues in the title of an action is when the party sues in more than one capacity.
41 It is acknowledged that the actions have been conducted for many years entitled so as to identify that the plaintiffs sued as trustees. That, too, is specifically pleaded at the outset of each of the statements of claim.
42 There is no provision of the Rules of the Supreme Court which precludes the entitling of these two proceedings as they presently are entitled. Whether it was necessary for them to be so entitled is not material. They are so entitled and they may be so entitled.
(Page 15)
43 The reason for the application is said to be a difficulty encountered in the course of bankruptcy proceedings in the Federal Court in Bride & Anor v KMG Hungerfords(A Firm), unreported; FCt Federal Court; 23 April 1998 (No WAG 149 of 1997); Judgment No 412/98. A sequestration order had been made following the non-payment of costs which were ordered to be paid by Mr and Mrs Bride in earlier proceedings in this Court, in which proceedings they had also sued in the same trustee capacity as in these actions, and in which the title to the proceedings also identified Mr and Mrs Bride in their trustee capacity as the plaintiffs. It appears the Deputy Registrar in Bankruptcy in that case had added the words "as Trustees for the Pinwernying Family Trust" to the names of Mr and Mrs Bride on the Bankruptcy Notice. As was made clear in the reasons of the Full Court of the Federal Court at 10 - 11, Mr and Mrs Bride, although they had sued as trustees, were nevertheless liable personally under the order made in this Court for the costs of the action, subject of course to any right they might have to be indemnified from the Trust.
44 That being so, the question relevantly before the Full Court was whether Mr and Mrs Bride could reasonably have been misled by the Bankruptcy Notice into thinking they could only satisfy the debt from monies available to them from the Trust or, perhaps, misled into thinking that a failure to comply with the Bankruptcy Notice might lead to their bankruptcy in some form of limited capacity. At 13, the Full Court rejected such possibilities, given the personal circumstances and knowledge of the debtors, as Mr and Mrs Bride knew that this Court had held that they had no capacity to have brought those proceedings as trustees of the Trust so that they "must be deemed to have known that they were personally liable for the costs awarded against them". In the circumstances, the Full Court concluded that the irregularity in the use of the phrase "as Trustees for the Pinwernying Family Trust" in the Bankruptcy Notice was to be regarded as merely a formal defect or irregularity which had not caused any substantial injustice.
45 In my respectful view, any difficulty there experienced arose from the description of Mr and Mrs Bride in the Bankruptcy Notice and not from the title to the proceedings in this Court. The decision of the Full Court of the Federal Court, in my view, indicates that if Mr and Mrs Bride are not described by reference to their trustee capacity in the Bankruptcy Notice, there should not be any legal or practical difficulty arising from the way in which these actions are entitled. There is, in my view, no reason especially at this late stage to consider any change to the description of the plaintiffs in the title to these actions.
(Page 16)
46 I would add one further observation. When my reserved decision was originally delivered, there was omitted from the description of the plaintiffs in the titles to both actions the phrase "as Trustees of the Pinwernying Family Trust". That appears to have been an unfortunate but short lived consequence of a change of standard format which was occurring in this Court at that time. That has now been corrected and a replacement cover page of my reasons has been issued which describes the plaintiffs by including their trustee capacity.
Costs Orders
47 For the reasons given it is ordered as follows:
1. In CIV 1570 of 1989 the plaintiffs are to pay the taxed costs of the first defendant ("the Bank"), and in CIV 1804 of 1989 the plaintiffs are to pay 85% of the taxed costs of the defendant, in each case including reserved costs.
2. Work undertaken for the Bank and Peat Marwick Mitchell after 15 July 1994 which is referrable to Scale Items 13 Getting Up, 14 Counsel Fees and Attending Trial, Call-over and Reserved Judgment, and 24 (previously Item 23A) Pre-trial, Mediation and other Conferences, should be jointly taxed as in one action and the assessed value of that work apportioned 2/3 to CIV 1570 of 1989 and 1/3 to CIV 1804 of 1989, and allowance made accordingly in each action.
3. The assessed value of work undertaken in these actions, not being work the subject of par 2 of this Order, which cannot readily be determined on taxation to be referable to one action or the other, should be apportioned 2/3 to CIV 1570 of 1989 and 1/3 to CIV 1804 of 1989, and allowance made accordingly in each action.
4. The upper limit for work, being work in each action undertaken before 1 July 1997 referrable from time to time to Scale Item 6 Pleadings and which is not already the subject of a specific costs order, is varied in CIV 1570 of 1989 to $2,000 and in CIV 1804 of 1989 to $1,500.
5. The limit from time to time for work in each action referrable to Scale Item 8(a) Particulars, is removed.
(Page 17)
- 6. The upper limit for work, being work in each action referrable to Scale Item 9(b) Discovery, and which is not already the subject of a specific costs order, is varied so that the limit in CIV 1570 of 1989 is $6,000 and in CIV 1804 of 1989 is $1,500.
7. (1) For the purposes of par 2, the upper limit for work referable to Scale Item 13 Getting Up is varied to $105,000.
(2) It is further directed that on taxation, separately from and in addition to the allowances made under par 7(1), the taxing officer should make a reasonable allowance in CIV 1570 of 1989 for work undertaken by the defendants, which would normally have been undertaken by the plaintiffs in each action in preparing sets of pleadings and agreed documents for trial (including sets of further amended pleadings necessitated during the trial), without specific limit and assessed as if the first defendant in CIV 1570 of 1989 were the plaintiff in both actions.
8. For the purposes of par 2 there be a certificate for second counsel and, for the purposes of assessing the allowance to be made for senior counsel, the limits provided from time to time by the Scale is removed.
9. The value of the subject matter in each action is fixed for the purposes of taxation at $3,500,000.
10. The plaintiffs to pay the taxed costs of the defendants for the hearing on 31 May 2000 in any event, they being assessed as one and apportioned 2/3 to CIV 1570 of 1989 and 1/3 to CIV 1804 of 1989 and allowance made accordingly in each action.