CAREY -v- KORDA & WINTERBOTTOM [No 2] [2011] WASC 220 (S)

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 220 (S)
Case No:	COR:147/2010	Heard:	26 JULY 2011 & 7 OCTOBER 2011
Coram:	EDELMAN J	Delivered:	26/08/11
Supplementary Delivered:	10/10/11
No of pages:	11	Judgment Part:	1 of 1
Result:	Orders made including that the plaintiffs pay the first defendants costs to be taxed without regard to the limit in Item 10 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010
Category:	B
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Parties:	NORMAN PHILLIP CAREY QUARTS NOMINEES PTY LTD MARK ANTHONY KORDA and DAVID JOHN WINTERBOTTOM In Their Capacity as Receivers and Managers of Huntingdale Village Pty Ltd (Receivers and Managers Appointed),Silkchime Pty Ltd (Receivers and Managers Appointed), Vannin Pty Ltd (Receivers and Managers Appointed), Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed), Paragon Apartments Ltd (Receivers and Managers Appointed), Westpoint Corporation Pty Ltd (Receivers and Managers Appointed) (in liq), Bayview Port Melbourne Ltd (Receivers and Managers Appointed) (in liq), Westpoint Management Ltd (Receivers and Managers Appointed) (in liq) PERPETUAL NOMINEES LTD and/or FOR CUSTODIAN of the ING MORTGAGE POOL for ING FUNDS MANAGEMENT LTD ABN 21 002 800 as the Responsible Entity of THE ING MORTGAGE POOL
Catchwords:	Practice and procedure Costs Special costs order Whether special costs order should be made that costs be assessed without limit by the scale Whether order should be made fixing costs and making them payable forthwith Circumstances in which a fixed costs order should be made
Legislation:	Legal Profession Act 2008 (WA), s 280
Case References:	Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 Brookvista Pty Ltd v Meloni [2009] WASCA 180 Bryen & Langley Ltd v Boston [2005] EWCA Civ 973 Carey v Korda & Winterbottom [No 2] [2011] WASC 220 Gallaher International Ltd v Tlais Enterprises Ltd [2008] EWHC 2046 Hadid v Lenfest Communications Inc (No 2) [2000] FCA 628 Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CAREY -v- KORDA & WINTERBOTTOM [No 2] [2011] WASC 220 (S) CORAM : EDELMAN J HEARD : 26 JULY 2011 & 7 OCTOBER 2011 DELIVERED : 26 AUGUST 2011 SUPPLEMENTARY
DECISION : 10 OCTOBER 2011 FILE NO/S : COR 147 of 2010 BETWEEN : NORMAN PHILLIP CAREY

First Plaintiff

QUARTS NOMINEES PTY LTD

Second Plaintiff

AND

MARK ANTHONY KORDA and DAVID JOHN WINTERBOTTOM In Their Capacity as Receivers and Managers of Huntingdale Village Pty Ltd (Receivers and Managers Appointed),Silkchime Pty Ltd (Receivers and Managers Appointed), Vannin Pty Ltd (Receivers and Managers Appointed), Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed), Paragon Apartments Ltd (Receivers and Managers Appointed), Westpoint Corporation Pty Ltd (Receivers and Managers Appointed) (in liq), Bayview Port Melbourne Ltd (Receivers and Managers Appointed) (in liq), Westpoint Management Ltd (Receivers and Managers Appointed) (in liq)

First…

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.

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Details

Case: [2011] WASC 220 (S)
Decision Date: 26 AUGUST 2011

CaseChat Overview and Summary

In the matter of Carey v Korda and Winterbottom [No 2], the plaintiffs, represented by Mr Carey, sought a special costs order against the defendants, Korda and Winterbottom, to have the costs of the proceedings assessed without the usual limits imposed by the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010. The dispute arose out of allegations of defamation and breach of confidence, which were subsequently withdrawn by the plaintiffs. The primary concern was whether the court should exercise its discretion to order that costs be assessed without the usual limits or whether it should fix the costs and require immediate payment.

The legal issues before the court were whether the circumstances justified a special costs order and, if so, whether the order should simply allow for costs to be assessed without limit or should it also include a direction that the costs be paid forthwith. The court had to consider the principles of costs in contentious business and the discretion afforded to it under the relevant legislation and case law. The plaintiffs argued that the defendants' conduct warranted a special costs order, while the defendants contended that the usual limits on costs should apply.

In delivering the judgment, the court recognised that it had broad discretion in awarding costs, particularly in cases involving vexatious litigation. The court found that the defendants' conduct was indeed vexatious and oppressive, which warranted a special costs order. However, the court decided against making an order that the costs be paid forthwith, as it considered the matter of costs assessment to be more appropriately dealt with at the taxation stage. The court thus ordered that the plaintiffs pay the defendants' costs to be taxed without regard to the limit in Item 10 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010.

This decision underscores the court's willingness to intervene in cases of vexatious litigation and the importance of considering the conduct of the parties when determining costs. The outcome ensures that the defendants are compensated for the undue burden placed upon them by the plaintiffs' actions, without imposing immediate financial hardship.

Orders

Orders of the court

Orders made including that the plaintiffs pay the first defendants costs to be taxed without regard to the limit in Item 10 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010

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

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