Coco C'Bay Association (Inc). v Cooper
[2022] WASC 449
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: COCO C'BAY ASSOCIATION (INC). -v- COOPER [2022] WASC 449
CORAM: SOLOMON J
HEARD: ON THE PAPERS
DELIVERED : 16 DECEMBER 2022
PUBLISHED : 16 DECEMBER 2022
FILE NO/S: CIV 2360 of 2021
BETWEEN: COCO C'BAY ASSOCIATION (INC).
Plaintiff
AND
MICHAEL JAMES COOPER
First Defendant
SHARON LEE COOPER
Second Defendant
THE REGISTRAR OF TITLES
Third Defendant
Catchwords:
Costs - Fixed costs application - Quantum of costs sought
Legislation:
Transfer of Land Act 1893 (WA), s 138B, s 138C(2)(a)
Rules of the Supreme Court 1971 (WA), O 66 r 1(1)
Result:
The first and second defendant pay the plaintiff's costs fixed in the sum of $2,880.50
Category: C
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | HHG Legal Group |
| First Defendant | : | In person |
| Second Defendant | : | In person |
| Third Defendant | : | No appearance |
Cases referred to in decision:
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Coco C'Bay Association (Inc) v Paddison [2022] WASC 5
SOLOMON J:
This is the plaintiff's application for costs.
On 12 January 2022, I published reasons in Coco C'Bay v Association (Inc) v Paddison (the Paddison matter).[1]That matter was one of several involving absolute caveats held by the plaintiff association over the properties of various members of the association. The first and second defendants in this matter, Mr and Mrs Cooper, are two such members who in November 2021 applied to the second defendant under s 138B of the Transfer of Land Act 1893 (WA) (TLA) to serve the plaintiff with a notice that the caveat would lapse within 21 days, unless the plaintiff obtained an order from the Supreme Court.
[1] Coco C'Bay Association (Inc) v Paddison [2022] WASC 5.
Under those circumstances, the plaintiff in this matter filed an originating summons on 14 December 2021 seeking an urgent extension of the caveat, until the matter could be finally determined. That extension was granted on 17 December 2021 and was to stand until further order.
As it happened, the only matter that proceeded to substantive argument and a final determination was the Paddison matter. Following the publication of reasons in that matter, whereby the plaintiff was successful and the caveat was upheld, the defendants in the other related matters opted not to continue to resist the extension of the caveats over their respective properties. The plaintiff was awarded their costs in the Paddison matter, to be taxed if not agreed.
The first and second defendants never entered an appearance in this matter. On 15 February 2022, counsel for the plaintiff emailed the court to convey that the first and second defendants had expressed an intention not to proceed any further with the matter. As such, the orders of 17 December 2021 have remained on foot.
On 24 March 2022, I published a decision relating to the costs of another action relating to the same plaintiff association in which, following the Paddison matter, the first defendant resolved not to proceed to resist the continuation of the caveat (the Hudson matter).[2] In that matter, the plaintiff association applied for costs. I fixed the plaintiff's costs in the sum of $2,364.60. That figure included the appearances of the plaintiff's counsel at various hearings, and court filing fees. In that judgment I expressed concern that the amount claimed by the plaintiff (nearly $10,000) was excessive. That was particularly so in circumstances where I observed that the majority of the work completed in the Paddison matter (for which the plaintiffs were awarded costs) was repeated in substantially the same terms in the Hudson matter. In my view, ordering that the defendants in the Hudson matter pay costs to be taxed posed a real risk that the plaintiffs would be able to recover costs for work that had been, essentially, duplicated.
[2] Coco C'Bay Association (Inc) v Hudson [2022] WASC 97.
The Costs Application
In February 2022, the plaintiff explained that it was content for the order of 17 December 2021 to stand without a substantive hearing, and sought an order that the first and defendants pay the plaintiff's costs. By email from the court, I instructed counsel for the plaintiffs to confer with the defendants regarding costs.
Between February and September 2022, the parties conferred in relation to costs, but that conferral failed to resolve the issue. I brought the matter on for directions on 7 October 2022, following some correspondence from the first and second defendants seeking clarification from the court.
On 7 October 2022, by consent, I made orders pursuant to s 138C(2)(a) of the TLA extending the caveat the subject of the proceeding until further order of the court. I also programmed the further filing of material in relation to costs, and once again encouraged conferral between the parties in the hopes that a settlement agreement might be reached.
On 4 November 2022, the plaintiff filed submissions in relation to costs. I shall return to the content of those submissions later. On 30 November 2022, the first and second defendant filed responsive submissions via email. Those submissions essentially outlined the first and second defendants' reasons for challenging the caveat, their reasons for discontinuing the action, and their personal circumstances. The first and second defendants submitted that 'the paperwork [the plaintiff] use (sic) for each case is similar if not the same - the difference with ours was a few emails…we stand firm in our belief that the amount sought by [the plaintiff] is excessive'.[3]
[3] Submissions in response to Plaintiff's application for costs (30 November 2022), 2.
Disposition
Order 66 r 1(1) of the Rules of the Supreme Court 1971 (WA) provides that the power to award costs is discretionary. The only real fetter on that discretion is that it be exercised judicially. Ordinarily, the successful party will recover their costs from the unsuccessful party. I canvassed the principles relating to the application of the general rule in matters that are concluded without a substantive hearing in Hudson.[4] I need not repeat those observations here. In any event, the first and second defendants have agreed to pay the plaintiff's costs. The only real dispute in this matter is the quantum.
[4] Coco C'Bay Association (Inc) v Hudson [17] - [25].
As part of that broad discretion, the court may make an order that costs be paid in a fixed amount. The purpose of fixing costs is to avoid the expense and delay associated with taxation. The principles in relation to fixing costs were set out by the Court of Appeal in Brookvista Pty Ltd v Meloni and do not bear repeating, save for an observation that 'the power to award a fixed sum should only be exercised when the court considers that it can determine the amount of the costs fairly. That means the court must have available to it sufficient material that it is confident it can arrive at an appropriate sum.'[5] In order to satisfy myself to that requisite degree in this matter, I asked that the plaintiff include in its submissions a draft bill of costs incurred in the proceedings.
[5] Brookvista Pty Ltd v Meloni [2009] WASCA 180 [27].
In its submissions of 4 November 2022, the plaintiff claims $7,811.10 in professional costs. Of that, $2,366.10 concerns work relating to costs, including conferral and preparation of submissions in support of the application for costs. The plaintiff also claims $1,735.35 of disbursements. In total, the plaintiff claims $9,546.45 of costs.
In its submissions, the plaintiff also briefly outlines the differences between the work done in this matter and the Paddison matter. Having reviewed the court file, in my view those differences are not so material as to justify a significant departure from my decision in the Hudson matter. The only sufficiently unique document is the affidavit of Ms Gina Nofal, sworn on 15 December 2021. That affidavit related to service, and its content and annexures, while not legally complex, are not repeated anywhere in the Hudson or Paddison matters. I would therefore allow an hour of senior practitioner's time for the preparation of that document. Additionally, I am prepared to allow an hour of senior practitioner's time to account for a small amount of correspondence, and any limited differences with respect to the materials filed.
The plaintiff has, for the most part, failed to persuade me that I should award an amount that is significantly more than the amount awarded in the Hudson matter. I will, therefore, not allow the plaintiff to recover their costs in relation to this costs application.
It is appropriate to note that no criticism can be made of Mr and Mrs Cooper and the respectful way in which they conducted themselves in their communications with the court. On various occasions, they have communicated to the court a strong desire for finality due to levels of understandable stress caused by the protracted costs proceedings.
In the circumstances, I consider that the reasonable costs to be recovered by the plaintiff in this matter are:
$1,643 - Supreme Court filing fee;
$495 - Correspondence and drafting costs;
$495 - Preparation of the affidavit of Ms Gina Nofal, sworn 15 December 2021; and
$247.50 - Counsel fees for the hearing on 17 December 2021.
Orders
For the reasons set out above, I shall order that:
1.The first and second defendants pay the plaintiff's costs, fixed in the amount of $2,880.50.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IS
Associate to the Honourable Justice Solomon
16 DECEMBER 2022
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