Cheng v Lam [No 9]

Case [2022] WASC 252

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   CHENG -v- LAM [No 9] [2022] WASC 252

CORAM:   TOTTLE J

HEARD:   23 MAY 2022

DELIVERED          :   9 AUGUST 2022

FILE NO/S:   CIV 1706 of 2015

BETWEEN:   MARY YUEN SHAN CHENG

Plaintiff

AND

FRANCIS HUNG LAM

First Defendant

ANDREA MAN YEE CHENG

Second Defendant

MARY YUEN SHAN CHENG

First Defendant by Counterclaim

CHAN THANH LAM

Second Defendant by Counterclaim

DAVID CUONG CHAN LAM

Third Defendant by Counterclaim

TINH AU

Fourth Defendant by Counterclaim


Catchwords:

Practice and procedure - Appeal of registrar's costs orders - Whether appeal is incompetent - Turns on own facts

Practice and procedure - Registrar's costs orders supplemental to registrar's report - Appeal treated as an application to adopt the registrar's costs orders - Whether the registrar erred in principle by making a costs order against the plaintiff - Whether the registrar erred in exercising discretion in awarding partial indemnity costs to the first and second defendants - Turns on own facts

Legislation:

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018
Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020
Rules of the Supreme Court 1971 (WA), O 60A r 4(3)(a)
Supreme Court Act 1935 (WA), s 50

Result:

Registrar's costs orders adopted

Category:    B

Representation:

Counsel:

Plaintiff : Mr P J Hannan
First Defendant : Mr P G McGowan
Second Defendant : Mr P G McGowan

Solicitors:

Plaintiff : G A Lacerenza & Associates
First Defendant : Johnston Crouse Lawyers
Second Defendant : Johnston Crouse Lawyers

Cases referred to in decision:

Cheng v Lam [No 2] [2018] WASC 199

Cheng v Lam [No 2] [2021] WASCA 196

Cheng v Lam [No 3] [2020] WASC 45

Cheng v Lam [No 3] [2020] WASC 45 (S)

Cheng v Lam [No 4] [2020] WASC 175

Cheng v Lam [No 5] [2021] WASC 129

Cheng v Lam [No 6] [2021] WASC 265

Cheng v Lam [No 7] [2021] WASC 417

Cheng v Lam [No 8] [2022] WASC 122

CPB Contractors Pty Ltd v Celsus Pty Ltd (No 2) [2018] FCA 2112; (2018) 268 FCR 590

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

House v The King [1936] HCA 40; (1936) 55 CLR 499

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66

Priority Networking Pty Ltd v Peterson [2018] WASC 36

Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)

Wilden Pty Ltd v Green [No 6] [2018] WASCA 198

TOTTLE J:

Overview

  1. On 28 June 2018, Chaney J ordered an account to be taken by a registrar in relation to eight property developments which had been the subject of partnership agreements between the plaintiff and the first and second defendants and others.  His Honour specified how the account should be taken.[1] In ordering the taking of an account Chaney J was exercising the power conferred…

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AGLC
Cheng v Lam [No 9] [2022] WASC 252
Case
[2022] WASC 252
Decision Date

CaseChat Overview and Summary

The case of Cheng v Lam [No 9] involved an appeal from decisions of registrars, as governed by O 60A r 4 of the Rules of the Supreme Court. The plaintiff, Cheng, sought to appeal the registrar's costs orders, which had been made in relation to an account taken under s 50(1) of the Supreme Court Act. Cheng contended that the reservation of the costs to the registrar should be considered an "intra-court" delegation made in the exercise of an implied or inherent power, separate from the orders governing the account. The defendants, Lam and others, argued that the registrar's costs orders were not subject to any review.

The central legal issue in the case was whether the appeal was competent under O 60A r 4. Specifically, the court needed to determine if the reservation of the costs to the registrar constituted a separate order that could be appealed, or if it was part of the same referral under s 50(1). Additionally, the court had to consider whether a delegation of judicial power to a registrar without the possibility of appeal or review would be permissible.

The court rejected the plaintiff's argument that the reservation of costs constituted a separate order. It held that the reservation was part of the same referral under s 50(1) and that the registrar's costs orders must be reviewed under s 50(2). This reasoning implied that the defendants' contention that the costs orders were not subject to review was incorrect, as such a delegation without review would be an impermissible delegation of judicial power.

In conclusion, the court found that the appeal was competent, and the registrar's costs orders were subject to review. This determination was based on the understanding that the reservation of costs was part of the same referral under s 50(1), and any delegation of judicial power without the possibility of appeal or review would be impermissible.

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

Appeals from decisions of registrars are governed by O 60A r 4 of the Rules of the Supreme Court which provides:4.Appeals from decisions of registrars(1)A party who is dissatisfied with an order or decision of a registrar may appeal from it.(2)The appeal must be made to a judge, but a judge may order that it be heard by a master.(3)This rule does not apply to an order or decision of a registrar -(a)made or given in relation to a cause, matter, question or issue referred to or tried by the registrar under section 50 or 51 of the Act; or(b)made or given in proceedings to which Order 61 applies; or(c)when acting as a taxing officer; or(d)made under Order 67A; or(e) to which Order 67B rule 17 applies. Section 50 of the Supreme Court Act provides:50.Question in civil matter may be referred to referee etc.(1)Subject to the rules of court, and to any right to have particular cases tried by jury, the Court or a judge may refer to a master or a registrar or to a referee for inquiry or report any question arising in any cause or matter, other than a criminal proceeding.(2)The report of the master, registrar or referee may be adopted wholly or partially by the Court or a judge, and, if so adopted, may be enforced as a judgment or order to the same effect. As explained by Mr Hannan in oral submissions the plaintiff's primary contention in support of the existence of a right of appeal from the registrar's costs orders was to the following effect - although the taking of the account was the subject of an order made under s 50(1) of the Supreme Court Act, par 9 of the orders made on 28 June 2018 should be considered as an 'intra-court' delegation made in the exercise of an implied or inherent power.[10] On that basis, so Mr Hannan argued, par 9 of the 28 June 2018 orders should be regarded as separate from the orders governing the taking of the account.[11] Mr Hannan accepted that the existence of such an implied or inherent power was not supported by any authority.[10] ts 1193.[11] ts 1193 - 1197. I do not accept the distinction drawn by Mr Hannan between the referral of the taking of the account to a registrar and the reserving of the costs of the taking of the account to the registrar. In my view they are different aspects of the same matter referred to a registrar by Chaney J exercising the power under s 50(1) of the Supreme Court Act. A number of other contentions were advanced in the plaintiff's written outline of submissions in support of the proposition that the appeal was a competent one. They were touched upon briefly in oral submissions. It would be fair to say, however, that as the argument unfolded Mr Hannan focussed on what I have described as his ultimate fallback position. With respect, this was a sensible approach. It is unnecessary for me to refer to the plaintiff's other contentions. The reasoning that the reservation of the question of costs of the taking of the account to the registrar formed part of the referral made under s 50(1) of the Supreme Court Act necessarily means that the registrar's costs orders must be reviewed for the purpose of making a decision as to whether they should be adopted under s 50(2). The first and second defendants' contention that the registrar's costs orders were not subject to any review should not be accepted. A delegation of judicial power to a registrar without the possibility of an appeal or review would constitute an impermissible delegation of judicial power.[12][12] See generally: Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 95 (Mason CJ & Deane J), 126 - 125 (Dawson J), 154 (Gaudron J), 164 (McHugh J); Priority Networking Pty Ltd v Peterson [2018] WASC 36 [17] - [26] (Le Miere J); CPB Contractors Pty Ltd v Celsus Pty Ltd (No 2) [2018] FCA 2112; (2018) 268 FCR 590 [55] (Lee J).

Ratio Decidendi

Legal Principle Established

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