Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd
[2013] WASCA 66 (S)
•10 MAY 2013
CAPE LAMBERT RESOURCES LTD -v- MCC AUSTRALIA SANJIN MINING PTY LTD [2013] WASCA 66 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 66 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:98/2012 | ON THE PAPERS | |
| Coram: | MARTIN CJ McLURE P BUSS JA | 10/05/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Special costs order made | ||
| B | |||
| PDF Version |
| Parties: | CAPE LAMBERT RESOURCES LTD MT ANKETELL PTY LTD MCC AUSTRALIA SANJIN MINING PTY LTD MCC MINING (WESTERN AUSTRALIA) PTY LTD METALLURGICAL CORPORATION OF CHINA LIMITED |
Catchwords: | Costs Special costs order Legal Profession Act (WA), s 280(2) Importance and complexity |
Legislation: | International Arbitration Act 1974 (Cth) Legal Profession Act 2008 (WA), s 280(2)(c) |
Case References: | Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) Grundy v Cassar [No 2] [2012] WASC 103 Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CAPE LAMBERT RESOURCES LTD -v- MCC AUSTRALIA SANJIN MINING PTY LTD [2013] WASCA 66 (S) CORAM : MARTIN CJ
- McLURE P
BUSS JA
- MT ANKETELL PTY LTD
Appellants
AND
MCC AUSTRALIA SANJIN MINING PTY LTD
First Respondent
MCC MINING (WESTERN AUSTRALIA) PTY LTD
Second Respondent
METALLURGICAL CORPORATION OF CHINA LIMITED
Third Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : CORBOY J
Citation : CAPE LAMBERT RESOURCES LTD -v- MCC AUSTRALIA SANJIN MINING PTY LTD [2012] WASC 228
File No : CIV 2408 of 2010
Catchwords:
Costs - Special costs order - Legal Profession Act (WA), s 280(2) - Importance and complexity
Legislation:
International Arbitration Act 1974 (Cth)
Legal Profession Act 2008 (WA), s 280(2)(c)
Result:
Special costs order made
Category: B
Representation:
Counsel:
Appellants : Mr A J Myers QC & Mr M P Bruce
First Respondent : Dr A S Bell SC & Mr C W Lockhart
Second Respondent : Dr A S Bell SC & Mr C W Lockhart
Third Respondent : Dr A S Bell SC & Mr C W Lockhart
Solicitors:
Appellants : Bennett & Co
First Respondent : Corrs Chambers Westgarth
Second Respondent : Corrs Chambers Westgarth
- Third Respondent : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S)
Grundy v Cassar [No 2] [2012] WASC 103
Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2)
(Page 4)
- REASONS OF THE COURT:
Summary
1 This appeal was dismissed for reasons published on 12 March 2013 (Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66). At the time the reasons were published, orders were made dismissing the appeal and requiring the appellants to pay the respondents' costs of the appeal to be taxed if not agreed. The respondents were also given liberty to apply for any special orders relating to the costs of the appeal, and directions were made for the exchange of written submissions in the event that the respondents sought such orders on the basis that the application would be resolved by the court on the papers.
2 The respondents have applied for an order that their costs of the appeal be taxed without regard to any limit fixed by any applicable costs determinations, including any limits with respect to maximum hourly rates. The appellants neither oppose nor consent to the making of such an order. These are our reasons for concluding that such an order should be made.
Section 280 of the Legal Profession Act 2008 (WA)
3 The application is made pursuant to s 280(2)(c) of the Legal Profession Act 2008 (WA) (the Act). That section provides that a court may make an order of the kind sought by the respondents if it is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter. The section requires that before making an order pursuant to its terms the court must form an opinion which has two components. First, the court must determine that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate. Second, the court must conclude that the inadequacy arises because of the 'unusual difficulty, complexity or importance of the matter' (Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11]). Having heard the matter and being familiar with the way in which the case was conducted and the issues which were litigated, the court is in a position to form the opinions required under the section as matters of impression rather than science or mathematics: EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7]; Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2) [14].
(Page 5)
Inadequacy
4 The customary way of establishing that the amount of costs allowable under the applicable legal costs determination is inadequate is by establishing that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit imposed by that determination (Heartlink [16]). In this case, the respondents have filed an affidavit by a lawyer which sets out the amount which the respondents would wish to claim on taxation in respect of relevant items of the applicable scale, if they were not constrained by the limits imposed in that scale. Those amounts substantially exceed the limits applicable under the relevant scale. The lawyer deposes to the fact that the amounts actually charged in respect of those items exceed the amounts which the respondents wish to claim on taxation. Having regard to the financial significance and complexity of the issues ventilated during the appeal, the affidavit satisfies us that there is a fairly arguable case that the bill to be presented may tax at an amount which is greater than the limits applicable under the relevant costs determination, and that the amount allowable under the relevant determination is inadequate, in accordance with s 280 of the Act.
Unusual difficulty, complexity or importance
5 It is accepted that the word 'unusual' in s 280(2) qualifies only the term 'difficulty' and not the terms 'complexity' or 'importance' - see Grundy v Cassar [No 2] [2012] WASC 103 [50]. At the heart of the appeal was an issue concerning an assertion that an amount of $80,000,000 should be paid into escrow pending a commercial arbitration between the parties. The issues in the appeal included issues with respect to the construction of the arbitration agreement in force between the parties and the proper construction and effect of s 7 of the International Arbitration Act 1974 (Cth) governing the relationship between the domestic courts of Australia and international commercial arbitration tribunals. In our view, these issues, and the other matters raised during the course of argument on the appeal were complex and important within the meaning of s 280 of the Act.
Conclusion
6 For these reasons, an order should be made pursuant to s 280 of the Act providing that the respondents' costs be taxed without regard to any limits imposed by any applicable costs determination including any limit with respect to maximum hourly rates.
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