Clements v Simto Pty Ltd
[2002] WASCA 162
•19 JUNE 2002
CLEMENTS -v- SIMTO PTY LTD [2002] WASCA 162
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 162 | |
| Case No: | FUL:1/2000 | 14 JUNE 2002 | |
| Coram: | WHITE AUJ | 19/06/02 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed with costs | ||
| B | |||
| PDF Version |
| Parties: | PHILLIP CLEMENTS SIMTO PTY LTD (ACN 009 050 637) CAROB INDUSTRIES PTY LTD (IN LIQ) (T/AS FOREMOST EQUIPMENT) SIMTO PTY LTD T/AS SIMTO AUSTRALIA |
Catchwords: | Costs Taxation Certificate of taxation Application to set aside certificate under the Court's inherent jurisdiction Whether setting aside of certificate futile Turns on own facts |
Legislation: | Rules of the Supreme Court, O 66 r 55 |
Case References: | Mossensons v Coastline Associates, unreported; FCt SCt of WA; Library No 970661, 2 December 1997 Clay v Kurelic [2001] WASC 318 Thorne v Thorne [1979] 3 All ER 164 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant (Claimant)
AND
SIMTO PTY LTD (ACN 009 050 637)
Respondent
- Claimant
AND
SIMTO PTY LTD T/AS SIMTO AUSTRALIA
Respondent
(Page 2)
Catchwords:
Costs - Taxation - Certificate of taxation - Application to set aside certificate under the Court's inherent jurisdiction - Whether setting aside of certificate futile - Turns on own facts
Legislation:
Rules of the Supreme Court, O 66 r 55
Result:
Applications dismissed with costs
Category: B
Representation:
FUL 1 of 2000
Counsel:
Appellant (Claimant) : Mr P Smearyn
Respondent : Mr A D Bereyne
Solicitors:
Appellant (Claimant) : Talbot & Olivier
Respondent : Jackson McDonald
ARB 17 of 1993
Counsel:
Appellant : Mr P Smearyn
Respondent : Mr A D Bereyne
Solicitors:
Appellant : Talbot & Olivier
Respondent : Jackson McDonald
(Page 3)
Case(s) referred to in judgment(s):
Mossensons v Coastline Associates, unreported; FCt SCt of WA; Library No 970661, 2 December 1997
Case(s) also cited:
Clay v Kurelic [2001] WASC 318
Thorne v Thorne [1979] 3 All ER 164
(Page 4)
1 WHITE AUJ: These are two applications to set aside a Certificate of taxation dated 12 March 2002. The Chamber Summonses are dated 24 May 2002 and are in identical terms. The application is supported by an affidavit sworn by Mr Phillip Clements, who claims to be the appellant in the proceedings. His short affidavit reads as follows:
"I, PHILLIP CLEMENTS of 68 The Avenue, Nedlands in the State of Western Australia, Businessman, being duly sworn make oath and say as follows:
1. I am the appellant in these proceedings.
2. From mid-January 2002 until the end of March 2002 I was resident and working in Italy.
3. The Taxation of the bill of costs in relation to this matter was set down for hearing on 12 March 2002. The date fixed for the taxation was arranged with the Registrar as I expected to be back in Australia in sufficient time to attend and arrange for representation at the taxation. However my commitments required me to stay in Italy beyond 12 March 2002 and accordingly I arranged for my agent in Perth to contact Messrs Talbot & Olivier and deliver a brief and relevant files [sic] to enable that firm to appear on my behalf.
4. I am informed and verily believe that the file and papers were delivered to Messrs Talbot & Olivier on 7 March 2002.
5. I am informed and verily believe that an email communication was sent to me on 7 March 2002 advising that Messrs Talbot & Olivier were unable to attend the taxation on my behalf on 12 March 2002 due to prior commitments.
6. I did not receive this email and, as a consequence, the matter proceeded without any representation on my behalf.
7. This affidavit is filed in support of an application to set aside the Certificate of Taxation and for the bill of costs in this matter to be dealt with to enable me to be heard with regard to the matter."
(Page 5)
2 The date of taxation having been fixed so as to accommodate Mr Clement's convenience, there was, in the result, no appearance on his behalf at the taxation. The appointment for the taxation was peremptory pursuant to O 66 r 38.
3 There was no application made within 7 days, or at all, pursuant to O 66 r 54 for a review by the taxing officer of the taxation and, accordingly the certificate was final and binding: O 66 r 55(3).
4 While there is no express power in the Rules of the Supreme Court to set aside a Certificate of taxation, that can be done under the Court's inherent jurisdiction, if it is proper to do so: Mossensons v Coastline Associates, unreported; FCt SCt of WA; Library No 970661, 2 December 1997.
5 The applicant does not point to any error in principle on the part of the taxing officer nor does he raise any specific objections to the Bill of Costs. As Ipp J pointed out in Mossensons v Coastline Associates (supra) at 9:
"The court will not exercise its inherent jurisdiction to set aside a taxation certificate unless it is satisfied that such an order would not be futile."
6 There is nothing before me to suggest that it would not be an exercise in futility to grant the applications.
7 I am not persuaded that there is any good reason to exercise my discretion in favour of the applications and I dismiss both, with costs.
0