Brunetto v BRUMETT Pty Ltd

[2012] WASC 39 (S)

BRUNETTO -v- BRUMETT PTY LTD [2012] WASC 39 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 39 (S)
Case No:	COR:183/2011	Heard:	ON THE PAPERS
Coram:	MASTER SANDERSON	Delivered:	13/09/2012
No of Pages:	4	Judgment Part:	1 of 1
Result:	Plaintiff to pay second defendant's costs
Category:	B
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Parties:	GIUSEPPINA BRUNETTO BRUMETT PTY LTD GIUSEPPE BRUNETTO
Catchwords:	Costs Indemnity costs Taxation of costs Turns on own facts
Legislation:	Nil
Case References:	Nil

• Last Updated: 14/09/2012


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS


CITATION : BRUNETTO -v- BRUMETT PTY LTD [2012] WASC 39 (S) CORAM : MASTER SANDERSON HEARD : ON THE PAPERS DELIVERED : 13 SEPTEMBER 2012 FILE NO/S : COR 183 of 2011 BETWEEN : GIUSEPPINA BRUNETTO

Plaintiff

AND

BRUMETT PTY LTD
First Defendant

GIUSEPPE BRUNETTO
Second Defendant


Catchwords:

Costs - Indemnity costs - Taxation of costs - Turns on own facts

Legislation:

Nil

Result:

Plaintiff to pay second defendant's costs


(Page 2)

Category: B


Representation:

Counsel:


Plaintiff : Mr C P Stokes
First Defendant : No appearance
Second Defendant : Mr B G Grubb


Solicitors:


Plaintiff : Chris Stokes & Associates
First Defendant : No appearance
Second Defendant : Metaxas & Hager





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

Nil



(Page 3)

1 MASTER SANDERSON: on 18 January 2011 Acting Master Chapman made an order in proceedings between the same parties to this action (COR 1 of 2011) in the following terms:

The plaintiff be granted leave pursuant to s 237 of the Corporations Act 2001 to conduct proceedings on behalf of the first defendant in District Court Action CIV 3251 of 2009 including the filing and furtherance of a counterclaim in those proceedings and any settlement of those proceedings that may be affected.

2 The matter was otherwise adjourned to 1 February 2011. At the resumed hearing, Acting Master Chapman made the following order:

The plaintiff be indemnified by the first defendant on a solicitor and own client basis in respect of the conduct of those proceedings on its behalf.

3 The learned Master also made an order that the first defendant was to pay the costs of the application in any event.

4 On 3 November 2011 Chris Stokes & Associates acting for the plaintiff in this action rendered an invoice for $29,990 to the defendants. On 15 November 2011 the plaintiff commenced these proceedings to enforce payment of the invoice. On 17 November 2011 the second defendant requested an itemised invoice. On the same day, Chris Stokes & Associates by letter responded saying an itemised invoice was not required and the invoice was not required to be taxed in the absence of a resolution of both directors of the second defendant. However, on 18 November 2011 an itemised invoice was provided.

5 On 24 November 2011 the second defendant's solicitor advised Chris Stokes & Associates that the bill should be taxed. The plaintiff was also invited to discontinue this application. The plaintiff did not refer the invoices to taxation and proceeded with the applications. I heard the application and concluded as follows:

What the plaintiff is seeking is in the nature of a mandatory injunction. The remedy is discretionary. In this case I would not make an order unless and until the bill has been taxed. Given the second defendant says he will cooperate in allowing for payment of the taxed bill in the end no order ought be made. At this point the proper course is to adjourn this application pending taxation of Mr Stokes bill. If the parties are not thereafter able to resolve all outstanding issues the matter can be relisted. For the present the cost of this application ought be reserved [44].

6 The plaintiff's solicitor's bill of costs was taxed on 3 May 2012. The allocator was signed and on 11 May the amount of the taxed bill was paid.

(Page 4)

7 There remains outstanding the question of costs. I directed the parties should make written submissions and I would decide the question on the papers. Written submissions were received from the second defendant on 27 July 2012. No submissions were made on behalf of the plaintiff.

8 On behalf of the second defendant he has submitted that the plaintiff ought be ordered to pay costs on an indemnity basis or alternatively on a party party basis. It is said that if the plaintiff's application for a mandatory injunction was unsuccessful then costs ought follow the event. Further, it submitted it should have been obvious this was a case where the plaintiff's bill should have been taxed. That was pointed out to the plaintiff's solicitor by the defendants solicitors well before the hearing took place. It is difficult to understand why this was not done.

9 I accept the arguments put on behalf of the second defendant. This was one of those clear cases where there could be little or no doubt what the plaintiff properly advised should have done. She should have had the bill of costs taxed. The plaintiff and the second defendant had fallen out to the extent all trust between them had been destroyed. The plaintiff was in a position where she could act on behalf of the first defendant in the District Court proceedings and was indemnified for her costs. As I said in earlier reasons:

A party who is to pay indemnity costs cannot be expected to pay whatever is demanded but only those costs which in the circumstances are reasonable. The best way to work out what is reasonable in the absence of agreement is to have the bill taxed. That is what should happen in this case [13].

10 It is difficult to see how the plaintiff properly advised could not have come to that conclusion. Without the benefit of any submissions from the plaintiff there is nothing to temper that view.

11 The order will be:

1. The plaintiff to pay the second defendant's costs of the application on a full indemnity basis save insofar as those costs have unreasonably been incurred.

2. The second defendant should bring in a minute of orders which reflects the disposition of the application.