Caratti v Caratti

[2012] WASC 357

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CARATTI -v- CARATTI [2012] WASC 357

CORAM:   ALLANSON J

HEARD:   12 SEPTEMBER 2012

DELIVERED          :   27 SEPTEMBER 2012

FILE NO/S:   CIV 2006 of 2008

BETWEEN:   JOHN MICHAEL CARATTI

Plaintiff

AND

ALLEN BRUCE CARATTI
First Defendant

TINA MICHELLE BAZZO
Second Defendant

KARENE MARIE THOMSON
Fourth Defendant

LYONS ROAD LAND COMPANY PTY LTD
Fifth Defendant

ANKETELL LAND COMPANY PTY LTD
Sixth Defendant

GUCCE HOLDINGS PTY LTD
Seventh Defendant

GUCCE DEVELOPMENTS PTY LTD
Eighth Defendant

MARCIA NATALIE SPARGO
Ninth Defendant

DAWNLINK PTY LTD
Tenth Defendant

NICOLE MADLEINE CARATTI
Eleventh Defendant

MADDELEINE CARATTI
Twelfth Defendant

ALISHA BETH CARATTI
Thirteenth Defendant

SAMANTHA CLARE FERGUSON-SMITH
Fourteenth Defendant

JOSEPHINE LYNETTE BAZZO
Fifteenth Defendant

PAUL JOHN MANSUTTI
Sixteenth Defendant

ANKETELL LAND HOLDINGS COMPANY PTY LTD
Seventeenth Defendant

BERNGUARD DEVELOPMENTS PTY LTD
Eighteenth Defendant

DONCASTER ASSET PTY LTD
Nineteenth Defendant

MAMMOTH NOMINEES PTY LTD
Twentieth Defendant

MORTIMER LAND COMPANY PTY LTD
Twenty-first Defendant

NEWHOME NOMINEES PTY LTD
Twenty-second Defendant

OAKFORD LAND COMPANY PTY LTD
Twenty-third Defendant

STARBRAKE HOLDINGS PTY LTD
Twenty-fourth Defendant

STARBRAKE PTY LTD
Twenty-fifth Defendant

SUNLAND ASSET PTY LTD
Twenty-sixth Defendant

TREVALLEY INVESTMENTS PTY LTD
Twenty-seventh Defendant

TURNBERRY NOMINEES PTY LTD
Twenty-eighth Defendant

WEDGEPOINT PTY LTD
Twenty-ninth Defendant

WESTSWAN LAND COMPANY PTY LTD
Thirtieth Defendant

CAMDALE NOMINEES PTY LTD
Thirty-first defendant

MOONDANCER HOLDINGS PTY LTD
Thirty-second Defendant

ODD BALLS (WA) PTY LTD
Thirty-third defendant

MAMMOTH FINANCE PTY LTD
Thirty-fourth Defendant

WESTRALIA PROPERTY HOLDINGS PTY LTD
Thirty-fifth Defendant

109 ST GEORGES TERRACE PTY LTD
Thirty-sixth Defendant

1110 HAY PTY LTD
Thirty-seventh Defendant

GEORGE 218 PTY LTD
Thirty-eighth Defendant

GOLDTUNE INVESTMENTS PTY LTD
Thirty-ninth Defendant

MONTVISTA PTY LTD
Fortieth Defendant

GREAT NORTHERN LAND COMPANY PTY LTD
Forty-first Defendant

BELLAGE PTY LTD
Forty-second Defendant

BLUEBEACH HOLDINGS PTY LTD
Forty-third Defendant

ANKETELL FARMS PTY LTD
Forty-fourth Defendant

WESTEND ASSET PTY LTD
Forty-fifth Defendant

MOSHEE PTY LTD
Forty-sixth Defendant

GUCCE RANFORD ROAD PTY LTD
Forty-seventh Defendant

GUNAROO INVESTMENTS PTY LTD
Forty-eighth Defendant

PARKDALE ASSET PTY LTD
Forty-ninth Defendant

STARSKY PTY LTD
Fiftieth Defendant

89 BURSWOOD ROAD PTY LTD
Fifty-first Defendant

NICHE GROUP (WA) PTY LTD
Fifty-second Defendant

OCEAN KEYS (WA) PTY LTD
Fifty-third Defendant

PARLIAMENT PLACE PTY LTD
Fifty-fourth Defendant

PRADA PTY LTD
Fifth-fifth Defendant

HERDSMAN TECHNOLOGY LIMITED
Fifty-sixth Defendant

WHITBY LAND COMPANY PTY LTD
Fifty-seventh Defendant

HUSKER HOLDINGS PTY LTD
Fifty-eighth Defendant

DELTA ACE PTY LTD
Fifty-ninth Defendant

SUCCESS ASSET PTY LTD
Sixtieth Defendant

CHRISTINA MARCIA CARATTI
Sixty-first Defendant

NATALIE ROCHELLE CARATTI
Sixty-second Defendant

BENJAMIN MICK CARATTI
Sixty-third Defendant

OPAL NIGHT PTY LTD
Sixty-fourth Defendant

RICH NIGHT PTY LTD
Sixty-fifth Defendant

130 FAUNTLEROY AVENUE (WA) PTY LTD
Sixty-sixth Defendant

YANCHEP INVESTMENTS PTY LTD
Sixty-seventh Defendant

TAAC PTY LTD
Sixty-eighth Defendant

Catchwords:

Practice and procedure - Costs - Costs thrown away - Costs determinations - Unusual difficulty complexity or importance - Costs to be paid forthwith - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA), s 280
Rules of the Supreme Court 1975 (WA), O 66 r 10
Supreme Court Act 1935 (WA), s 37

Result:

Orders made as to costs

Category:    B

Representation:

Counsel:

Plaintiff:     Mr D Ryan SC

First Defendant     :     No appearance

Second Defendant     :     Mr G D Cobby

Fourth Defendant     :     Mr G D Cobby

Fifth Defendant     :     No appearance

Sixth Defendant     :     No appearance

Seventh Defendant     :     Mr G D Cobby

Eighth Defendant     :     Mr G D Cobby

Ninth Defendant     :     Mr G D Cobby

Tenth Defendant     :     Mr G D Cobby

Eleventh Defendant     :     No appearance

Twelfth Defendant     :     No appearance

Thirteenth Defendant     :     Mr G D Cobby

Fourteenth Defendant     :     Mr G D Cobby

Fifteenth Defendant     :     Mr G D Cobby

Sixteenth Defendant     :     Mr G D Cobby

Seventeenth Defendant     :     No appearance

Eighteenth Defendant     :     No appearance

Nineteenth Defendant     :     No appearance

Twentieth Defendant     :     No appearance

Twenty-first Defendant     :     No appearance

Twenty-second Defendant  :     No appearance

Twenty-third Defendant     :    No appearance

Twenty-fourth Defendant   :     No appearance

Twenty-fifth Defendant     :     No appearance

Twenty-sixth Defendant     :    No appearance

Twenty-seventh Defendant :     No appearance

Twenty-eighth Defendant   :     No appearance

Twenty-ninth Defendant     :    No appearance

Thirtieth Defendant     :     No appearance

Thirty-first defendant     :     Mr G D Cobby

Thirty-second Defendant     :    No appearance

Thirty-third defendant     :     Mr G D Cobby

Thirty-fourth Defendant     :    No appearance

Thirty-fifth Defendant     :     No appearance

Thirty-sixth Defendant     :     Mr G D Cobby

Thirty-seventh Defendant   :     Mr G D Cobby

Thirty-eighth Defendant     :    Mr G D Cobby

Thirty-ninth Defendant     :     Mr G D Cobby

Fortieth Defendant     :     Mr G D Cobby

Forty-first Defendant     :     Mr G D Cobby

Forty-second Defendant     :    Mr G D Cobby

Forty-third Defendant     :     Mr G D Cobby

Forty-fourth Defendant     :     Mr G D Cobby

Forty-fifth Defendant     :     Mr G D Cobby

Forty-sixth Defendant     :     Mr G D Cobby

Forty-seventh Defendant     :    Mr G D Cobby

Forty-eighth Defendant     :     Mr G D Cobby

Forty-ninth Defendant     :     Mr G D Cobby

Fiftieth Defendant     :     Mr G D Cobby

Fifty-first Defendant     :     Mr G D Cobby

Fifty-second Defendant     :     Mr G D Cobby

Fifty-third Defendant     :     Mr G D Cobby

Fifty-fourth Defendant     :     Mr G D Cobby

Fifth-fifth Defendant     :     Mr G D Cobby

Fifty-sixth Defendant     :     No appearance

Fifty-seventh Defendant     :    No appearance

Fifty-eighth Defendant     :     Mr G D Cobby

Fifty-ninth Defendant     :     Mr G D Cobby

Sixtieth Defendant     :     Mr G D Cobby

Sixty-first Defendant     :     No appearance

Sixty-second Defendant     :    No appearance

Sixty-third Defendant     :     No appearance

Sixty-fourth Defendant     :     No appearance

Sixty-fifth Defendant     :     No appearance

Sixty-sixth Defendant     :     Mr G D Cobby

Sixty-seventh Defendant     :    Mr G D Cobby

Sixty-eighth Defendant     :     No appearance

Solicitors:

Plaintiff:     Lemonis/Tantiprasut Lawyers

First Defendant     :     No appearance

Second Defendant     :     Gadens Lawyers

Fourth Defendant     :     Gadens Lawyers

Fifth Defendant     :     No appearance

Sixth Defendant     :     No appearance

Seventh Defendant     :     Gadens Lawyers

Eighth Defendant     :     Gadens Lawyers

Ninth Defendant     :     Gadens Lawyers

Tenth Defendant     :     Gadens Lawyers

Eleventh Defendant     :     No appearance

Twelfth Defendant     :     No appearance

Thirteenth Defendant     :     Gadens Lawyers

Fourteenth Defendant     :     Gadens Lawyers

Fifteenth Defendant     :     Gadens Lawyers

Sixteenth Defendant     :     Gadens Lawyers

Seventeenth Defendant     :     No appearance

Eighteenth Defendant     :     No appearance

Nineteenth Defendant     :     No appearance

Twentieth Defendant     :     No appearance

Twenty-first Defendant     :     No appearance

Twenty-second Defendant  :     No appearance

Twenty-third Defendant     :    No appearance

Twenty-fourth Defendant   :     No appearance

Twenty-fifth Defendant     :     No appearance

Twenty-sixth Defendant     :    No appearance

Twenty-seventh Defendant :     No appearance

Twenty-eighth Defendant   :     No appearance

Twenty-ninth Defendant     :          No appearance

Thirtieth Defendant     :     No appearance

Thirty-first defendant     :     Gadens Lawyers

Thirty-second Defendant     :    No appearance

Thirty-third defendant     :     Gadens Lawyers

Thirty-fourth Defendant     :    No appearance

Thirty-fifth Defendant     :     No appearance

Thirty-sixth Defendant     :     Gadens Lawyers

Thirty-seventh Defendant   :     Gadens Lawyers

Thirty-eighth Defendant     :    Gadens Lawyers

Thirty-ninth Defendant     :     Gadens Lawyers

Fortieth Defendant     :     Gadens Lawyers

Forty-first Defendant     :     Gadens Lawyers

Forty-second Defendant     :    Gadens Lawyers

Forty-third Defendant     :     Gadens Lawyers

Forty-fourth Defendant     :     Gadens Lawyers

Forty-fifth Defendant     :     Gadens Lawyers

Forty-sixth Defendant     :     Gadens Lawyers

Forty-seventh Defendant     :    Gadens Lawyers

Forty-eighth Defendant     :     Gadens Lawyers

Forty-ninth Defendant     :     Gadens Lawyers

Fiftieth Defendant     :     Gadens Lawyers

Fifty-first Defendant     :     Gadens Lawyers

Fifty-second Defendant     :     Gadens Lawyers

Fifty-third Defendant     :     Gadens Lawyers

Fifty-fourth Defendant     :     Gadens Lawyers

Fifth-fifth Defendant     :     Gadens Lawyers

Fifty-sixth Defendant     :     No appearance

Fifty-seventh Defendant     :    No appearance

Fifty-eighth Defendant     :     Gadens Lawyers

Fifty-ninth Defendant     :     Gadens Lawyers

Sixtieth Defendant     :     Gadens Lawyers

Sixty-first Defendant     :     No appearance

Sixty-second Defendant     :    No appearance

Sixty-third Defendant     :     No appearance

Sixty-fourth Defendant     :     No appearance

Sixty-fifth Defendant     :     No appearance

Sixty-sixth Defendant     :     Gadens Lawyers

Sixty-seventh Defendant     :    Gadens Lawyers

Sixty-eighth Defendant     :     No appearance

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

Collins v Westralian Sands Ltd (1993) 9 WAR 56

Frigger v Lean [2012] WASCA 66

Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Corrs Chambers Westgarth [2011] WASC 44

Jeruth Pty Ltd v Haybale Pty Ltd [2004] VSC 319

MacMahon Contractors Pty Ltd v Woodside Energy Ltd [No 2] [2009] WASC 11

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Pasdonnay Pty Ltd v SDS Corporation Ltd [2005] WASCA 9 (S)

Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

1. ALLANSON J:  In 2008, John Caratti began these proceedings by writ.  The action started with 12 defendants, the first of whom is John Caratti's brother, Allen.  

2. The firm Gadens Lawyers represents five of the original defendants.  As a group those defendants (and 32 others added later) have been referred to as the Gadens Defendants.  It is a convenient shorthand name, so long as it does not mask that the extent of involvement of each of those defendants is not the same. 

3. In September 2008, an appearance was entered for the five Gadens Defendants who were then parties.

4. The number of parties has progressively increased.  In 2009 the plaintiff joined a further four defendants.  In April 2010, he applied to amend the writ again, to add defendants 17 to 60.  The writ was amended in August 2010.  The matter then went to mediation, which failed to resolve it.

5. Since late 2011, a further eight defendants have been added.  Of the 68 defendants, 37 are in the group of Gadens Defendants. 

6. The increase in the number of parties accompanied a growth in the length and complexity of the statement of claim.  In June 2011, counsel for John Caratti outlined the case for the purposes of an application that it be tried together with four other actions involving some of the same parties.  He described the case as about whether property held by the various defendants were assets of a partnership between John and Allen Caratti, and were to be distributed in accordance with the mechanism set out in a deed that the brothers executed in 2002. 

7. The defendants had not yet pleaded by 30 September 2011, and the court ordered the defendants to file their defences.  The timetable was later extended.  The Gadens Defendants filed their defence on 1 January 2012.

8. In 2012, the plaintiff significantly expanded his case.  At a strategic conference on 7 February 2012, and in a position paper filed 1 February 2012, counsel for John Caratti identified the issues to be tried.  They now included whether various defendants, including Gadens Defendants, were knowingly concerned in breaches of fiduciary duties by Allen Caratti.  The plaintiff had not then pleaded these allegations. 

9. The court ordered that the plaintiff file and serve a re‑amended or substituted statement of claim by 6 March 2012.  The time for compliance was extended and, on 18 April 2012, the plaintiff filed a substituted statement of claim.  It contains extensive additional detail regarding the partnership plea.  And John Caratti now alleges that Allen Caratti's conduct constituted a fraudulent and dishonest design to establish and acquire new business interests in breach of his fiduciary duties under the partnership, and that Ms Tina Bazzo (and others) acquiesced in Allen Caratti's conduct with knowledge of his fraudulent and dishonest design.

10. Following service of a substituted statement of claim, the Gadens Defendants foreshadowed objections to it.  On 11 May 2012, the court ordered the Gadens Defendants to file and serve submissions outlining their objections by 8 June 2012.  In respect of any objections which remained unresolved after conferral, the plaintiff was to file submissions by 29 June with a view to a hearing in the last week of July.

11. The plaintiff applied to adjourn the hearing of the application because the Gadens Defendants had served their submissions late.  On 12 July, I vacated the hearing.

12. The plaintiff filed an amended substituted statement of claim and extensive particulars on 14 August 2012.  After they had been served with the new pleading, the Gadens Defendants did not press their application to disallow the amendments.  While the plaintiff amended his pleading, he does not agree that the objections taken to the substituted statement of claim were sound.  

13. In this context, the Gadens Defendants seek orders that the plaintiff pay their costs thrown away by reason of each of the amendments to the statement of claim since the commencement of the action (including amendments not filed), and the costs of their outline of submissions dated 5 July 2012.  They further seek an order that the costs be taxed without regard to the limits imposed by the scale and be paid forthwith.

The costs thrown away

1. To date there has been no order for the costs thrown away by reason of the successive amendments to the statement of claim.  The plaintiff does not oppose an order that the Gadens Defendants have those costs, even though costs orders were not made at the time of the amendments. 

2. Where costs have been reasonably incurred that relate to work done and wasted by reason of an amendment, it is appropriate that the party who amends pays those costs.  Because of my conclusion on the other matters argued, I am satisfied that an order should be made now, even though it is, in some instances, years after the amendment.

The costs of the submissions of 5 July 2012

1. The application to disallow parts of the substituted statement of claim was not determined on the merits.

2. Sometimes, when there has been no hearing on the merits, it is still possible to say that one party has succeeded and apply the general rule that the successful party is entitled to its costs.  Sometimes it is possible, on the papers, to clearly discern which party would have been successful so that the agreement or compromise that renders the hearing unnecessary does not displace the usual order that the successful party have its costs.  And sometimes it is apparent that one party has acted unreasonably.  In such cases the court can fairly determine who should pay the costs:  see, generally, Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622; Jeruth Pty Ltd v Haybale Pty Ltd [2004] VSC 319.

3. But this is not such a clear case.  The Gadens Defendants objected to many of the paragraphs in the substituted statement of claim.  They may have succeeded on some but not others.  There has been no argument on the merits of their application.  It is not appropriate to attempt to determine what the outcome would have been without hearing argument, and it would also be a poor use of the court's resources to embark on that task. 

4. There should be no order as to costs regarding the submissions dated 5 July 2012.

Should there be an order lifting scale limits for costs

1. The court may, 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 (Legal Profession Act 2008 (WA) s 280(2)):

   (a)order the payment of costs above those fixed by the determination;

   (b)fix higher limits of costs than those fixed in the determination;

   (c)remove limits on costs fixed in the determination.

2. The Gadens Defendants do not ask for an order lifting the hourly rates of the practitioners who appeared.  They say that the time allowed in the relevant costs determination is inadequate in this matter and should be lifted.

3. The first question is whether the conditions for the making of a special costs order are satisfied.  The judgment to be made by the court is, at this stage, 'preliminary and provisional':  Collins v Westralian Sands Ltd (1993) 9 WAR 56, 64, 68; Pasdonnay Pty Ltd v SDS Corporation Ltd [2005] WASCA 9 (S). The court may be able to make that judgment from its own observations and knowledge of the matter without requiring further evidence such as a draft bill of costs: Frigger v Lean [2012] WASCA 66 [82].

4. In my opinion, from the amendments introduced by the re‑amended writ and statement of claim filed 4 August 2010, the matter can be described as complex.  Before then it was a difficult case, but has not been shown to be unusually difficult, complex or important for a matter filed in this court.

5. Length of pleadings and number of parties do not necessarily determine whether a matter is difficult or complex, but they can be guides.  The re‑amended writ in August 2010 increased the number of parties to 60, with separate although similar allegations pleaded against most of the corporate defendants. 

6. The volume of pleadings now filed on behalf of John Caratti is extraordinary.  The statement of claim is 474 pages long.  Paragraph 1 of the prayer for relief takes 72 pages and seeks multiple alternative declarations against each of many corporate defendants.  In addition, the plaintiff has filed 301 pages of further and better particulars of the statement of claim.  This is not said to criticise the plaintiff and his lawyers, or the defendants who requested the particulars.  There are many defendants, and many transactions have been identified as relevant to the plaintiff's claims.

7. It may be, as the plaintiff submits, that the complexity of the case is primarily the product of the number of corporate defendants and the complexity of the inter‑relationship between those companies and others. But that only explains why it is complex, and does not deny that it is. The complexity of the inter‑relationships and the number of transactions relied on by the plaintiff make it fairly arguable that the time allowed under the relevant costs determination falls well short of the time reasonably required to carry out particular tasks. The court can make that assessment without further evidence. That is all that is required for an order under s 280. The order is, in no sense, punitive. It does nothing more than recognise that, in these circumstances, the determination may not provide reasonable compensation for the costs actually incurred.

8. The evidence does not permit me to impose limits in substitution for those prescribed.  It will be for the Gadens Defendants to justify the time they claim to the taxing officer.

Should the costs be ordered to be paid forthwith

1. Costs may be dealt with by the court at any stage of the proceedings, and the court may order the costs to be paid forthwith notwithstanding that the proceedings are not concluded:  Rules of the Supreme Court 1971 (WA) O 66 r 10(1).

2. Paragraph 3 of Consolidated Practice Direction 4.7.1 provides that as a general rule, where an order for costs is to be made against a party in interlocutory proceedings, the costs will be fixed and ordered to be paid forthwith or by a particular date.  That is not to put an onus on the plaintiff, but simply to recognise, in exercising a discretion that is not otherwise confined, that the usual practice of the court is to order that costs of interlocutory applications will be paid forthwith.  The fact that the costs are to be taxed rather than fixed does not alter the power to order that they be paid forthwith:  see, for example, Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Corrs Chambers Westgarth [2011] WASC 44 [35]; MacMahon Contractors Pty Ltd v Woodside Energy Ltd [No 2] [2009] WASC 11.

3. The plaintiff submits that the same considerations that apply to the costs of an interlocutory application may not apply to costs thrown away as a result of an amendment.  The usual order is that the costs thrown away be the other party's in any event, and those costs are taxed at the conclusion of the matter.  The plaintiff argues that this usual rule should apply unless there are exceptional circumstances.

4. Finally, the plaintiff says that it will only be possible to say with accuracy what costs were thrown away after the Gadens Defendants have put on a defence and the proceedings have been heard. 

5. Even if the usual rule is that argued by the plaintiff, I do not accept that exceptional circumstances are required to depart from it. Neither s 37 of the Supreme Court Act 1935 (WA) nor O 66 r 10 requires exceptional circumstances before an order is made that costs be paid forthwith. As a general proposition, it is inappropriate to read a provision that confers jurisdiction or grants powers to a court by making conditions or imposing limitations which are not found in the words used: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [21] ‑ [22]. A requirement that there be exceptional circumstances would limit the court's discretion unnecessarily.

6. There are two circumstances which, in this case, justify making an order that requires the payment now of the costs thrown away.

7. First, this matter has been proceeding for four years.  Costs have been incurred by the Gadens Defendants that will be paid by the plaintiff in any event.  The event is some time in the future.  The pleadings are not complete.  This case will not get to trial this year.

8. Second, the case changed in character with the introduction of the plea that some of the Gadens Defendants knowingly participated in fraudulent and dishonest conduct.  That change was first pleaded in a substituted statement of claim after the Gadens Defendants had filed their defences.  It is inevitable that the defendants will file a substituted defence. 

9. These circumstances are sufficient to support an order that the costs thrown away to date by the successive amendments be taxed and paid now.

10. It may be difficult to accurately establish the costs which have been thrown away to date, but those difficulties are likely to be no worse now than at the conclusion of the proceedings.  

Costs of the application

1. The plaintiff asks for an order that he have the costs of the directions hearing on 4 September 2012, and the hearing on 12 September 2012 of the Gadens Defendants' application for costs.  Except for the costs of the submissions of 5 July 2012, the defendants have been substantially successful.  The plaintiff's application is dismissed.

Conclusion

1. The orders will be to the following effect:

   1.The plaintiff is to pay the costs thrown away by the second, fourth, seventh to tenth, thirteenth to sixteenth, thirty‑first, thirty‑third, thirty‑sixth to fifty‑fifth, fifty‑eighth to sixtieth, sixty‑sixth and sixty‑seventh defendants by reason of the amendments to the writ and statement of claim up to and including the amended substituted statement of claim filed 14 August 2012.

   2.There is an order under s 280 of the Legal Profession Act 2008 (WA) lifting the limit on the times allowed in the determinations made under that Act, from 4 August 2010.

   3.The costs are to be taxed, if not agreed, and are to be paid forthwith.

   4.The defendants' application is otherwise dismissed.

   5.The plaintiff's application for the costs of the hearings on 4 and 12 September 2012 is dismissed.