JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BROWNE -v- BROWNE [No 2] [2017] WASC 375 (S)
CORAM: SMITH AJ
HEARD: ON THE PAPERS
DELIVERED: 11 APRIL 2018
FILE NO/S: CIV 2044 of 2017
BETWEEN: STEVEN EDWARD BROWNE
Plaintiff
AND
EDWARD BROWNE
Defendant
Catchwords:
Practice and procedure - Application for indemnity costs - Calderbank offer - Not unreasonable to refuse offer - Claim for special costs orders - Legal Profession Act 2008 (WA) - Whether scale limit should be removed for particular items - No new principles - Turns on own facts
Legislation:
Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA), items 1(c), 7(b), 17, 20(a), 20(b), 20(d)
Legal Profession Act 2008 (WA), s 280(2)
Result:
Special costs order made
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Hotchkin Hanly Lawyers |
| Defendant | : | Dwyer Durack |
Case(s) referred to in decision(s):
Browne v Browne [No 2] [2017] WASC 375
Calderbank v Calderbank [1975] 3 All ER 333
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S)
Eccles v Koolan Iron Ore Pty Ltd [2013] WASC 418 (S)
Eclipse Resources Pty Ltd v The State of Western Australia [No 2] [2015] WASC 137
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S)
Mentha As Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq) [2014] WASC 478 (S)
Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2)
Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242 (S)
The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345 (S)
SMITH AJ:
The facts of the substantive matter that are relevant to the application for indemnity costs and a special costs order
The plaintiff, Steven Browne, is one of four sons of the defendant, Mr Browne. Mr Browne is the registered proprietor of a number of farming properties which Steven and his brothers have solely occupied to conduct their own farming operations. The property occupied by Steven is Burracoorong.
Until early 1999, Steven had been a partner in a farming partnership with Mr Browne, Mrs Browne and his brothers.
Steven's claim was that at various times from 1975, Mr Browne promised him that he would gift Burracoorong to him before, or upon the death of Mr Browne or upon the death of Steven's mother, Mrs Browne, and Mr Browne thereby induced an assumption to that effect.
In early 1999, Steven, Mr and Mrs Browne and Steven's three brothers entered into an agreement to split the farming partnership. It was not in dispute that part of the agreement was that…
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- AGLC
- Browne v Browne [No 2] [2017] WASC 375 (S)
- Case
- [2017] WASC 375 (S)
- Decision Date
CaseChat Overview and Summary
The court examined whether it was unreasonable for the applicant to refuse a Calderbank offer made by the respondent. The court also considered whether the costs allowable in respect of the work done were inadequate due to the particular characteristics of the matter. The court held that it was not unreasonable for the applicant to refuse the Calderbank offer, as the offer was not an advantageous settlement for the applicant. The court further found that the costs incurred by the applicant were adequate and did not warrant a removal of the scale limit for particular items of costs. The court relied on the principle that an examination of individual items of the costs determination should be considered when determining whether costs allowable in respect of the work done are inadequate.
The Supreme Court of Western Australia dismissed the application for indemnity costs. The court found that the applicant was not entitled to indemnity costs, and the costs incurred were adequate. The court also held that there was no basis to remove the scale limit for particular items of costs. The court concluded that the matter did not involve unusual difficulty, complexity or importance that would justify a departure from the usual principles governing costs orders. The court did not introduce any new principles but rather applied the existing legal framework to the specific facts of the case.
Orders
Orders of the court
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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
However, this approach does not mean that an examination of individual items of the costs determination should not be considered when determining whether costs allowable in respect of the work done is inadequate. In Electricity Generation v Woodside Martin CJ explained:[25]The question which must be addressed either in respect of individual items or a costs determination as a whole is whether the costs allowable in respect of the work done are inadequate because of the particular characteristic or characteristics of the 'matter' which has or have enlivened the jurisdiction of the court - that is, unusual difficulty, complexity or importance.[25] Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [12]. Phillip Bruce Dobson, solicitor for Steven, deposes in an affidavit sworn on 19 February 2018 that in about March 2017, after it appeared to him that it would be necessary for Steven to commence proceedings, he sought instructions from Steven to engage senior counsel. Mr Dobson's opinion that senior counsel should be engaged was premised on the following:(a)the importance of the matter to Steven, given that there was a potential for him to no longer be able to continue to live and farm on Burracoorong;(b)Mr Dobson's view was that the matter was sufficiently difficult to warrant the engagement of senior counsel, given the equitable nature of the claim and the facts giving rise to the plaintiff's claim traversed an extended period of time involving conversations and acts of reliance from a relatively long time ago, and did not rely on any formal written agreement;(c)Mr Dobson's view that the proposed senior counsel, Mr M Solomon SC, had experience in equitable claims of this nature; and(d)Mr Dobson's view based on his experience of Mr Solomon's work at previous mediations that he (Mr Solomon) would take a pragmatic and proactive approach in attempting to settle the matter, which he (Mr Dobson) considered to be particularly important given that the dispute involved members of the same family. Mr Dobson also deposes that:(a)after mediation had occurred on 24 August 2017 the parties continued to negotiate settlement of the dispute until about mid‑September. The negotiations of the parties (of which the court was informed) resulted in the parties agreeing to defer the preparation of the matter for trial, by extending the trial preparation milestones in the hope that the matter might settle and the parties be spared the costs of preparing for trial;(b)the consequence of the parties deferring the trial preparation milestones was that post‑mediation settlement discussions ceased, and there was less time to prepare the matter for trial (a trial which had already been listed on an expedited basis);(c)as a result of being given a very short time available to prepare the matter for trial it became necessary to engage junior counsel to assist; and(d)a considerable amount of work was necessary to be undertaken to prepare the matter for trial in a very short period of time and that without the assistance of junior counsel, Steven would not have been able to effectively prepare his case for trial as effectively as he did.