Cardaci v Cardaci [No 2] - [2022] WASC 277

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CARDACI -v- CARDACI [No 2] [2022] WASC 277
CORAM:   ALLANSON J
HEARD:   24 AUGUST 2022
DELIVERED          :   24 AUGUST 2022
PUBLISHED           :   25 AUGUST 2022
FILE NO/S:   CIV 1249 of 2022
BETWEEN:   MAE CARDACI
Plaintiff
AND
FILIPPO PRIMO CARDACI
Defendant

Catchwords:

Practice and procedure - Costs - Where party seeks further consideration of costs order made following hearing of application under s 92 of Trustees Act 1962 (WA) - Whether court can now alter or clarify perfected order - Whether alteration or clarification necessary - Whether court should make orders in this application requiring trustee to tax her own costs

Practice and procedure - Costs - Meaning of order for costs on solicitor and client basis

Practice and procedure - Costs - Whether order should be made for indemnity costs

Legislation:

Trustees Act 1962 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed
Defendant to pay plaintiff's costs of application on indemnity basis

Representation:

Counsel:

Plaintiff	:	Mr G D Cobby SC
Defendant	:	Mr S K Dharmananda SC & Ms C McKay

Solicitors:

Plaintiff	:	Herbert Smith Freehills
Defendant	:	Bennett + Co

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

Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26, (2001) 179 ALR 406
Ben-Pelech v Royle [2020] WASCA 168 (S)
Blatchford v Laine [2018] WASC 207
Commissioner of the Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64
Huntingdale Village Pty Ltd v Korda [2015] WASCA 101 (S)
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASC 129 (S)
Yara Australia Pty Ltd v Oswal [2012] WASCA 264

ALLANSON J:

Introduction

On 17 May 2022, on the plaintiff's originating summons, I gave directions under s 92 of the Trustees Act 1962 (WA) with respect to whether the plaintiff was justified in maintaining certain proceedings as trustee of the Washburn Trust and as trustee of Marc's Testamentary Trust. Further orders were made that related to the use by the plaintiff, as trustee, of money from the assets of the trusts to investigate claims against former trustees.
Mr Filippo Primo Cardaci appeared as a defendant in that application. I was satisfied that the defendant's participation was properly characterised as for the protection of the trust assets and provided for the defendant's costs to be paid from the two trusts.
The orders for costs were:
…
8.The Plaintiff's costs of the application be paid on a solicitor and client basis in equal shares from the assets of the Washburn Trust and Marc's Testamentary Trust.
9.The Defendant's costs of the application be paid on a solicitor and client basis in equal shares from the assets of the Washburn Trust and Marc's Testamentary Trust.
By letter dated 29 June 2022, the defendant applied for further orders. The application was supported by affidavits of Shemali Samaraweera, sworn 29 June 2022, and of Chloe Alyssa Tolley, affirmed 19 August 2022.
Initially, the defendant complained that, despite requests, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cardaci v Cardaci [No 2]

Details

AGLC: Cardaci v Cardaci [No 2] [2022] WASC 277
Case: [2022] WASC 277
Decision Date: 25 AUGUST 2022

CaseChat Overview and Summary

The case of Cardaci v Cardaci [No 2] involved a dispute between the parties regarding costs following a hearing under section 92 of the Trustees Act 1962 in Western Australia. The primary focus of the case was whether the court could alter or clarify a perfected order concerning costs. Additionally, the case addressed the interpretation of an order for costs on a solicitor and client basis and the appropriateness of an order for indemnity costs. The court was required to decide on the extent of its power to modify a perfected costs order, the necessity of such alteration or clarification, and the applicability of an order requiring the trustee to tax her own costs.

The court examined whether the order for costs on a solicitor and client basis meant that the costs should be taxed by the solicitor of the prevailing party or whether it required the trustee to tax the costs herself. Furthermore, the court assessed the circumstances under which an order for indemnity costs might be appropriate. The court found that once a costs order had been perfected, it could not be altered or clarified unless it was necessary to do so. In this instance, the court determined that no alteration or clarification was required. Regarding the order for costs on a solicitor and client basis, the court concluded that it meant the costs should be taxed by the solicitor of the prevailing party, not by the trustee. Finally, the court held that an order for indemnity costs could be appropriate in specific circumstances, but it was not necessary in this case.

In conclusion, the court held that the perfected costs order could not be altered or clarified and that the order for costs on a solicitor and client basis meant the costs should be taxed by the solicitor of the prevailing party. The court also determined that an order for indemnity costs was not appropriate in this case. The final orders of the court affirmed the existing costs order and clarified the meaning of the solicitor and client basis for costs taxation.

Orders