Caratti v Caratti

Case [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…

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Caratti v Caratti [2012] WASC 357
Case
[2012] WASC 357
Decision Date

CaseChat Overview and Summary

In the matter of Caratti v Caratti, the plaintiff sought a determination of costs in relation to proceedings that had been settled, but not before the parties had filed various applications and objections. The matter was heard in the Supreme Court of Western Australia. The primary issue before the court was whether the time limits for costs set out in a prior costs determination were adequate for the complexity of the matter. The court also needed to determine if the Gadens Defendants' objections to paragraphs in the substituted statement of claim had any bearing on the costs determination.

The court found that the matter, while complex, had not been shown to be unusually difficult, complex or important for a matter filed in that court. The court also noted that the Gadens Defendants had not sought to lift the hourly rates of the practitioners who appeared, but rather the time allowed in the relevant costs determination. The court concluded that the conditions for making a special costs order were not satisfied, as the matter had not been shown to be unusually difficult, complex or important. Therefore, the court declined to order the payment of costs above those fixed by the determination or to fix higher limits of costs than those fixed in the determination.

The court further held that it was 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. Therefore, there should be no order as to costs regarding the submissions dated 5 July 2012.

In summary, the court found that the matter was complex, but not unusually difficult, complex or important. The court also declined to make a special costs order as the conditions for doing so had not been satisfied. There was no order as to costs regarding the submissions dated 5 July 2012.

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

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