Coco C'Bay Association (Inc). v March
[2022] WASC 448
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: COCO C'BAY ASSOCIATION (INC). -v- MARCH [2022] WASC 448
CORAM: SOLOMON J
HEARD: ON THE PAPERS
DELIVERED : 16 DECEMBER 2022
FILE NO/S: CIV 2179 of 2021
BETWEEN: COCO C'BAY ASSOCIATION (INC).
Plaintiff
AND
GEOFFREY JAMES MARCH
First Defendant
THE REGISTRAR OF TITLES
Second 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 defendant pay the plaintiff's costs, fixed in the amount of $3,402.70
Category: C
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | HHG Legal Group |
| First Defendant | : | Michael Rennie |
| Second Defendant | : | No appearance |
Cases referred to in decision:
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Coco C'Bay Association (Inc) v Hudson [2022] WASC 97
Coco C'Bay Association (Inc) v Paddison [2022] WASC 5
SOLOMON J:
This is the first defendant's application for a fixed costs order.
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 defendant in this matter, Mr March, is one such member who in October 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 5 November 2021 seeking an urgent extension of the caveat, until the matter could be finally determined. That extension was granted on 11 November 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 defendant in this matter indicated by email to the court on 17 November 2021, that he did not 'want to have anything to do with this matter' due to ongoing health concerns. On 11 January 2022, the first defendant advised the court that he did not wish to appear. As such, the orders of 11 November 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 the first few months of 2022, there were communications with the parties in relation to costs. Those communications did not result in a resolution of the issue of costs.
On 27 October 2022, the court received a letter by registered post from Mr March, dated 21 October 2022. In that letter, without revealing the content of any previous negotiations, Mr March broadly outlined that he had not received any further correspondence in relation to costs, that he was prepared to pay the plaintiff's costs, and that he was willing and able to pay $2,364.60. That is, Mr March had requested that the court fix the costs of his matter in the same sum as the costs I had awarded in the Hudson matter. Mr March in his letter repeated his desire for closure, and advised that the protracted nature of the proceedings was adversely impacting his health and wellbeing.
I treated that letter as an application to fix the costs in the sum of $2,364.60, and the court emailed the plaintiff's solicitors explaining as much. The plaintiff indicated that it opposed any such application. I programmed the application accordingly.
On 16 November 2022, the application was listed for hearing. Mr March was represented at that hearing by Mr Rennie, for the first time in these proceedings. Mr Rennie advised the court that he was representing Mr March on a pro bono basis.
The plaintiff's solicitors indicated that they were instructed to oppose an application for costs fixed in the amount proposed by Mr March. Counsel for the plaintiff suggested that the plaintiff was seeking costs of approximately $5,000, inclusive of disbursements.[3]
[3] Transcript, Coco C'Bay Association (Inc) v Geoffrey James March, Supreme Court of Western Australia, 16 November 2022, 22.
I advised the parties at the hearing of 16 November 2022 that I had compared the court files in the various matters, and that it was not clear to me that any substantial difference existed in the work done between the Paddison matter, the Hudson matter, and this matter. In those circumstances, it appeared that the plaintiff would need to persuade me to order costs of more than double that which had been ordered in the Hudson matter.
On that day, that is 16 November 2022, 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. The first defendant consented to that order. I also programmed the further filing of material in relation to costs.
On 5 December 2022, the plaintiff filed submissions in support of their application for costs. I will return to the content of those submissions later in these reasons. The first defendant filed submissions on 12 December 2022. In short, Mr March did not contest that he should pay the plaintiff's costs. However, he submitted that 'a fixed costs order in the same region as that in Hudson is appropriate'.[4]
[4] First Defendant's Submissions on Plaintiff's Costs Application (12 December 2022) [10].
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.[5] I need not repeat those observations here. In any event, the first defendant has agreed to pay the plaintiff's costs. The only real dispute in this matter is the quantum.
[5] 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'.[6] 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.
[6] Brookvista Pty Ltd v Meloni [2009] WASCA 180 [27].
In its written submissions, the plaintiff claimed $7,722 of professional costs in relation to the matter generally, and an additional $2,448.60 of professional costs in relation to the costs application. The plaintiff also claimed $1,781.06 of disbursements. In total, the plaintiff in this matter claims costs of $11,951.66. I observe that that is more than double the estimate provided by counsel for the plaintiff at the hearing on 16 November 2022.
The plaintiff also outlined what were, in its submission, the substantial differences between the work done on the Paddison matter, the Hudson matter, and this matter.
One additional affidavit, sworn by Ms Nofal on 8 November 2021, was filed in this matter. The affidavit related to service and, though not a legally complex document, was different from the affidavits filed in the other matters. I am prepared to allow one hour of a senior practitioner's time for the drafting of that affidavit. 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 other differences set out by the plaintiff are not sufficiently material to justify a significant departure from my decision in the Hudson matter.
The plaintiff has, for the most part, failed to persuade me that the work completed in this matter entitles the plaintiff to any significantly higher costs award than that proposed by the first defendant in this application. I will, therefore, not allow the plaintiff to recover their costs in relation to this costs application.
I pause to observe that, for the majority of the proceedings, Mr March was unrepresented. At all times, he conducted himself in a manner that was reasonable and respectful. On various occasions, Mr March's correspondence with the court indicated his level of anxiety regarding the lack of resolution in the matter, and his understandable desire to finalise the proceedings.
In the circumstances, I consider that the reasonable costs to be recovered by the plaintiff in this matter are:
$1,670.20 - Supreme Court filing fee;
$495 - Correspondence and drafting costs;
$495 - Preparation of the affidavit of Ms Gina Nofal, sworn 8 November 2021;
$495 - Counsel fees for the hearing on 11 November 2021; and
$247.50 - Counsel fees for the hearing 19 November 2021.
Orders
For the reasons set out above, I shall order that:
The first defendant pay the plaintiff's costs, fixed in the amount of $3,402.70.
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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