City of Subiaco v Homebase Management Pty Ltd
[2015] WASCA 54 (S)
•13 APRIL 2016
CITY OF SUBIACO -v- HOMEBASE MANAGEMENT PTY LTD [2015] WASCA 54 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 54 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:144/2013 | ON THE PAPERS | |
| Coram: | MARTIN CJ NEWNES JA MURPHY JA | 13/04/16 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Special costs order granted | ||
| B | |||
| PDF Version |
| Parties: | CITY OF SUBIACO HOMEBASE MANAGEMENT PTY LTD |
Catchwords: | Costs Application for special costs order Whether costs determination inadequate Whether matter unusually difficult, complex, or of importance Turns on own facts |
Legislation: | Legal Profession (Supreme Court) (Contentious Business) Costs Determination 2014 Legal Profession Act 2008 (WA), s 280(2) Supreme Court (Court of Appeal) Rules 2005 (WA), r 65(1) |
Case References: | Eclipse Resources Pty Ltd v The State of Western Australia [No 2] [2015] WASC 137 EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S) Mentha as Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq) [2014] WASC 478 (S) Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2) Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CITY OF SUBIACO -v- HOMEBASE MANAGEMENT PTY LTD [2015] WASCA 54 (S) [2015] WASCA 54 (S) CORAM : MARTIN CJ
- NEWNES JA
MURPHY JA
- Appellant
AND
HOMEBASE MANAGEMENT PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : BEECH J
Citation : HOMEBASE MANAGEMENT PTY LTD -v- CITY OF SUBIACO [2013] WASC 419
File No : CIV 2393 of 2012
Catchwords:
Costs - Application for special costs order - Whether costs determination inadequate - Whether matter unusually difficult, complex, or of importance - Turns on own facts
Legislation:
Legal Profession (Supreme Court) (Contentious Business) Costs Determination 2014
Legal Profession Act 2008 (WA), s 280(2)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 65(1)
Result:
Special costs order granted
Category: B
Representation:
Counsel:
Appellant : Mr J A Thomson SC
Respondent : Mr S Penglis
Solicitors:
Appellant : Corrs Chambers Westgarth
Respondent : Herbert Smith Freehills
Case(s) referred to in judgment(s):
Eclipse Resources Pty Ltd v The State of Western Australia [No 2] [2015] WASC 137
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S)
Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S)
Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S)
Mentha as Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq) [2014] WASC 478 (S)
Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2)
Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 (S)
1 REASONS OF THE COURT: This appeal concerned the proper construction and effect of provisions of a lease between the parties relating to the review of rental. In May 2015, orders were made allowing the appeal and making declarations with respect to the proper construction and effect of the relevant provisions in the lease. In January 2016, the City of Subiaco (the City) applied for various orders, including a mandatory injunction requiring the respondent, Homebase Management Pty Ltd (Homebase), to immediately withdraw certain parts of submissions which had been made to a valuer appointed to determine the fair market rent applicable to the leased premises. That application was dismissed by the court on 29 January 2016, following a short hearing. The reasons for dismissing the application were given ex tempore and have not been formally published.
2 After dismissing the City's application, the court ordered that the City pay Homebase's costs of the application to be taxed if not agreed. The court also granted Homebase liberty to apply for a special costs order with respect to the taxation of its costs and established a timetable for the exchange of documents in the event that such liberty was exercised, on the basis that the application would be determined by the court on the papers without a further oral hearing. Pursuant to that liberty, Homebase has applied for an order pursuant to s 280(2) of the Legal Profession Act 2008 (WA) (the Act) removing the limit on costs allowable under the relevantly applicable item of the relevant costs determination. These reasons are confined to the determination of that application.
3 The submissions filed by Homebase in support of its application identify two potentially relevant items in the applicable scale, being item 23(e) and item 23(g) of the Legal Profession (Supreme Court) (Contentious Business) Costs Determination 2014. Item 23(e) is concerned with an application in an appeal to the Court of Appeal, whereas item 23(g) is concerned with the counsel fee on hearing of an appeal. Item 23(g) is concerned with counsel fees with respect to the hearing of substantive appeals, and is not concerned with applications of the kind made by the City. Accordingly, item 23(e) is the applicable item. That item allows for up to 10 hours of time spent by counsel in preparing and presenting argument at the hearing of any such application.
4 In support of its application, Homebase relies upon an affidavit sworn by a representative of its legal advisers in which he deposes that the total time spent by solicitors and counsel in responding to the City's application was as follows:
(a) 38.8 hours of solicitor time was involved in preparing Homebase's responsive submissions and evidence;
(b) 1.6 hours of solicitor time was involved in preparing for the hearing; and
(c) 10.5 hours of counsel time was involved in preparing Homebase's responsive submissions and evidence, preparing for the hearing and appearing at the hearing.
5 Homebase also relies upon the volume of the evidence adduced in relation to the City's application. The affidavit in support of the application comprises 657 pages, and the affidavit prepared by Homebase in opposition to the City's application comprises 139 pages.
6 Homebase further submits that the application concerned a matter of significant commercial importance, being the review of the rental relating to its major business asset.
7 Homebase further submits that the application brought by the City raised issues of complexity, including the scope of the court's jurisdiction under rule 65(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) and the scope of the inherent jurisdiction of the court with respect to the enforcement of its orders, assessed in a context in which there are well-developed legal principles relating to the extent to which a court will interfere with the process of determination undertaken by an independent expert valuer appointed by the parties to a commercial agreement.
8 The City opposes the order sought by Homebase. It submits that the questions of law raised by its application were not complex, and that the volume of the affidavit evidence does not, of itself, establish complexity, given that the bulk of the affidavit material comprised submissions made to the valuer and to the court in the earlier appeals, all of which were well-known to the parties.
Legal principles
9 Although there is a difference between the views expressed by Edelman J in Pourzand v Telstra Corporation Ltd1 and the views expressed by Martin CJ in Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd,2 the general principles relating to the application of s 280(2) of the Act are well established and have been enunciated in a number of cases.3 For present purposes it is unnecessary to reiterate those principles in these reasons, or to resolve the difference of view expressed by Edelman J and Martin CJ in the cases to which we have referred.
10 The first question which must be determined is whether the relevant scale item is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit that would be imposed by the relevant costs determination. In our view, that requirement is satisfied in this case. While it will, of course, be a matter for the taxing officer to determine whether the time spent by the solicitors and counsel in preparing for opposition to the City's application was reasonable, in our view the evidence establishes a fairly arguable case to the effect that an amount greater than the maximum amount allowable under item 23(e) of the scale was properly and reasonably incurred by Homebase in opposing the City's application.
11 The next question which must be addressed is whether the inadequacy of the scale arises because of the unusual difficulty, or complexity, or importance, of the matter. In our view, the 'matter', being the City's application for mandatory injunctive relief, gave rise to issues of legal and factual complexity, the resolution of which was potentially of significant importance to Homebase. The fact that the hearing of the application only occupied approximately half an hour is largely attributable to the court's view of the application's lack of merit. Had the court taken a different view of the application, it may well have been necessary for the legal representatives of Homebase to present detailed argument with respect to:
(a) the jurisdiction of the court;
(b) the extent to which the court's jurisdiction, if it existed, should be exercised in the context of a pending determination by an independent expert valuer; and
(c) the extent to which the submissions made by Homebase to the valuer accorded with the declarations made by the court with respect to the proper construction and effect of the lease.
Accordingly, it was necessary for the legal representatives of Homebase to fully and adequately prepare argument on each of these topics. In our view, it is at least fairly arguable that the time properly spent in undertaking that preparation exceeds the allowance of 10 hours contained in the relevant item of the scale, and can be attributed to the complexity and importance of the issues raised by the City's application.
12 For these reasons, the court will grant the application of Homebase, and order that the costs of Homebase which the City was ordered to pay on 29 January 2016 are to be taxed without regard to the limits imposed in any relevantly applicable item of the scale, and will also include the costs reasonably incurred by Homebase in applying for this order.
1Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2) [24] - [25].
2Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [5] - [12]. That decision was followed by Beech J in Eclipse Resources Pty Ltd v The State of Western Australia [No 2] [2015] WASC 137.
3 See, for example, Mentha as Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq) [2014] WASC 478 (S) [4] - [5]; Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 (S) [5]; Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11]; EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7]; Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S) [33].
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