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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coco C'Bay Association (Inc). v March

Details

AGLC: Coco C'Bay Association (Inc). v March [2022] WASC 448
Case: [2022] WASC 448
Decision Date

CaseChat Overview and Summary

In this case, the plaintiff, the Coco C'Bay Association (Inc.), sought to recover costs from the first defendant, Geoffrey James March, and the second defendant, the Registrar of Titles. The dispute arose from proceedings concerning the extension of a caveat over a property owned by Mr March. Mr March had applied under the Transfer of Land Act 1893 (WA) for the caveat to lapse, but the plaintiff opposed this application. The court granted an urgent extension of the caveat, which remained in effect until the substantive matter was determined. The case was one of several related matters involving the plaintiff association and its members. The court's primary task was to determine the quantum of costs the plaintiff could recover from Mr March.

The key legal issue in this case was the appropriate amount of costs to be awarded to the plaintiff. The court had to consider the submissions from both parties and the principles governing fixed costs, as well as the work done in this matter compared to similar matters. The court had already determined the costs in a similar case, Coco C'Bay Association (Inc) v Hudson, and fixed the plaintiff's costs at $2,364.60. In this case, Mr March proposed that the same amount be awarded, whereas the plaintiff sought approximately $5,000. The court had to assess whether the work done in this matter justified a higher award than that made in the Hudson case.

The court reviewed the submissions and the bill of costs submitted by the plaintiff. The plaintiff claimed professional costs of $7,722 for the general proceedings and an additional $2,448.60 for the costs application, along with $1,781.06 in disbursements. The court noted that this was significantly higher than the estimate provided by the plaintiff's counsel at the hearing. The court observed that, aside from one additional affidavit and minor differences in the materials filed, the work done in this matter was not substantially different from that in the Hudson case. Consequently, the court determined that the plaintiff was not entitled to significantly higher costs. The court also considered Mr March's conduct throughout the proceedings, noting that he had been unrepresented for the majority of the time and had conducted himself reasonably and respectfully.

In light of the above, the court fixed the plaintiff's costs at $3,402.70. This amount included the Supreme Court filing fee, costs for correspondence and drafting, preparation of an affidavit, and counsel fees for the hearings on 11 November 2021 and 19 November 2021. The court emphasised that Mr March had agreed to pay the plaintiff's costs and that the reasonable costs to be recovered by the plaintiff were not substantially higher than those awarded in the Hudson case.

The court ordered that the first defendant, Geoffrey James March, pay the plaintiff's costs, fixed in the amount of $3,402.70. This decision reflects the court's assessment of the work done in this matter and the principle of proportionality in costs awards.

Orders