Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 8]
[2015] WASC 166
•8 JUNE 2015
COMPUTER ACCOUNTING AND TAX PTY LTD (in liq) -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 8] [2015] WASC 166
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 166 | |
| 08/06/2015 | |||
| Case No: | CIV:2265/2006 | 19 & 23 SEPTEMBER & 6 OCTOBER 2014 | |
| Coram: | SIMMONDS J | 29/05/15 | |
| 46 | Judgment Part: | 1 of 1 | |
| Result: | Certain costs orders made | ||
| B | |||
| PDF Version |
| Parties: | COMPUTER ACCOUNTING AND TAX PTY LTD (in liq) PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD DONALD CAMPBELL SMITH as Executor of the Estate of MARTIN PAUL BANNING |
Catchwords: | Costs of action Approach to be adopted where appeal against trial judgment succeeds as to largest part of damages and costs orders after trial set aside with remitter Reserved costs - Orders made for most such costs Application for certain costs of Magistrates Court proceedings Costs of this application Approach to be adopted |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 84, s 86 Legal Practitioners Act 2003 (WA), s 215 Legal Profession Act 2008 (WA), s 280 Rules of Supreme Court 1971 (WA), O 66 r 1, r 2, r 11 |
Case References: | Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 2] [2010] WASC 318; (2010) 246 FLR 143 Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 7] [2014] WASC 360 Computer Accounting and Tax Pty Ltd v Professional Services of Australia Ltd [2008] WASC 133 Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133 (S) Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 4] [2009] WASC 407 EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 Forbes v Frigger [2009] WASC 77 Frigger v Campbell-Smith [2010] WASC 353 Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) Norilya Minerals Pty Ltd v Ireland (1994) 12 WAR 485 Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183; (2009) 261 ALR 179 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Souter v Condor Developments Pty Ltd [2012] WASCA 227 Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166 Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2) Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD
First Defendant
DONALD CAMPBELL SMITH as Executor of the Estate of MARTIN PAUL BANNING
Second Defendant
Catchwords:
Costs of action - Approach to be adopted where appeal against trial judgment succeeds as to largest part of damages and costs orders after trial set aside with remitter
Reserved costs - Orders made for most such costs - Application for certain costs of Magistrates Court proceedings
Costs of this application - Approach to be adopted
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 84, s 86
Legal Practitioners Act 2003 (WA), s 215
Legal Profession Act 2008 (WA), s 280
Rules of Supreme Court 1971 (WA), O 66 r 1, r 2, r 11
Result:
Certain costs orders made
Category: B
Representation:
Counsel:
Plaintiff : Mr P J Griffin
First Defendant : Mr T R Stephenson & Mr S V Forbes
Second Defendant : Mr T R Stephenson & Mr S V Forbes
Mrs A C T Frigger : In person
Mr K D Holbrook : Mr G Flynn
Solicitors:
Plaintiff : Peter J Griffin & Co
First Defendant : Eastwood Sweeney Law
Second Defendant : Eastwood Sweeney Law
Mrs A C T Frigger : Not applicable
Mr K D Holbrook : Hotchkin Hanly Lawyers
Case(s) referred to in judgment(s):
Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S)
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 2] [2010] WASC 318; (2010) 246 FLR 143
Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 7] [2014] WASC 360
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Ltd [2008] WASC 133
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133 (S)
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 4] [2009] WASC 407
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S)
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Forbes v Frigger [2009] WASC 77
Frigger v Campbell-Smith [2010] WASC 353
Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Norilya Minerals Pty Ltd v Ireland (1994) 12 WAR 485
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S)
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183; (2009) 261 ALR 179
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Souter v Condor Developments Pty Ltd [2012] WASCA 227
Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166
Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2)
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S)
- SIMMONDS J:
Introduction
1 This is an application for certain costs orders in this matter. The proposed costs orders relate to proceedings in the trial of the action, as well as a number of other proceedings. This application was brought pursuant to programming orders I made that resulted in the filing of a number of detailed affidavits for both the plaintiff and the defendants, as well as substantial written submissions from all parties. There were three days of hearings on the application and I reserved judgment at the end of the third day.
2 It will be seen that the present application, in respect of a number of the costs orders sought under it, has required me to revisit a number of proceedings in this matter that occurred up to six years ago.
3 In these reasons, I first provide the background to the present application. I then turn to consider each of the proposed costs orders sought in it.
4 It will become apparent from the background that in my view the present application is in respect of proposed costs orders of two kinds.
5 One kind is in respect of proceedings for which I made costs orders in May 2009 (my May 2009 costs orders) following my judgment in the trial of the action. As a result of an appeal against my assessment of damages, my May 2009 costs orders were set aside by the Court of Appeal and the question of the costs of the trial was remitted to me. My May 2009 costs orders included the costs of the trial as well as a number of other costs. I will call the proposed costs orders in relation to these costs, including but not limited to the costs of the trial, the proposed costs orders in place of my May 2009 costs orders.
6 The other kind of proposed costs orders to which the present application relates is in respect of other proceedings. I call these the other proposed costs orders.
7 I turn now to the background to the present application.
Background
8 The nature of the action in this matter, the substantive issues in the trial and the decisions as to those issues are described in Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133 (S) (CAT WASC (S)). That was the decision in which I set out my reasons for making my May 2009 costs orders. I set out that description:
These proceedings have their origin in proceedings in the Local Court. Those proceedings were No 17065 of 2003, commenced by summons on 17 September 2003. Those proceedings were a claim by the plaintiff, and its two directors and shareholders, Hartmut Huber Josef Frigger (Mr Frigger) and Angela Cecilia Theresa Frigger (Mrs Frigger), against the first defendant and against Martin Paul Banning (Mr Banning, now deceased) for loss incurred in the purchase of a property in Armadale (the Armadale property), then leased as a service station and an automotive workshop, as a result of misleading or deceptive conduct. Substituted particulars of claim and amended substituted particulars of claim prepared by solicitors subsequently engaged by the plaintiff were later filed in those proceedings.
On 9 July 2004 an order was made in the Local Court granting leave for Mr and Mrs Frigger to have themselves removed as plaintiffs in the proceedings.
By order of 14 November 2005, the proceedings, in the Perth Magistrates Court as the relevant Local Court had by then become, were transferred into the District Court. The District Court proceedings were initially CIV 332 of 2004 but became CIV 2797 of 2005. A statement of claim was filed in those proceedings.
Still later, by order made by consent on 17 November 2006, following an unsuccessful attempt to have the proceedings transferred into the Federal Court, the District Court proceedings were transferred into this court, to become CIV 2265 of 2006 (the present proceedings).
…
The action as tried was for damages (including aggravated or exemplary damages) in respect of economic loss or damage for representations by the first defendant for which Mr Banning was the maker or in which he was involved. Liability was rested on contraventions of Trade Practices Act 1974 (Cth) s 52 and Fair Trading Act 1987 (WA) s 10, and on negligence and deceit. The economic loss claimed was on the plaintiff's purchase from the first defendant of the Armadale property.
The substantive issues in the trial were the following, as described in Computer Accounting & Tax [Computer Accounting and Tax Pty Ltd v Professional Services of Australia Ltd [2008] WASC 133 (CAT WASC), the reasons for judgment in the trial][46]:
'The substantive issues in this trial go to whether there were representations that were false or conduct that was misleading as pleaded, whether there was negligence or fraud for the purposes of liability at common law in negligent misstatement or deceit, who was liable for the conduct in question, was there reliance on that conduct, what loss or damage was suffered thereby, whether aggravated or exemplary damages are recoverable, and whether interest should be awarded as claimed.'
There was one further substantive issue, however. It had to do with the capacity in which the plaintiff had acted at certain material times. I reach it shortly.
The decision in [CAT WASC] with respect to the substantive issues save for the further one was as follows.
As to the issue whether representations were made or conduct engaged in capable of being misleading or deceptive, I concluded that, of the representations or forms of conduct relied upon, most, numbered 1 to 5 in the judgment [187], including the principal representations or forms of conduct relied upon by the plaintiff in the action, were established.
As to the issue whether the representations made or forms of conduct engaged in were false or misleading or deceptive, I concluded that, of the five such representations or forms of conduct, all but one were shown to be false or misleading or deceptive.
As to the issue whether there was negligence in relation to the representations or forms of conduct engaged in that were false or misleading or deceptive, I concluded a breach of the duty of care in respect of each of them had been shown.
As to the issue whether there was awareness or recklessness sufficient for the tort of deceit in respect of all four of these representations or forms of conduct, I concluded this was made out in respect of two of the four.
As to the issue who was liable, I concluded both the first defendant and Mr Banning were liable for the four representation[s] or forms of conduct at common law (at least in negligence) and under the Fair Trading Act, and as to the first defendant under the Trade Practices Act, but as to Mr Banning under that statute only in respect of two of the representations made or forms of conduct engaged in.
As to the issue whether there was reliance on the four representations made and forms of conduct engaged in, I concluded there was such reliance in all cases.
As to the issue of whether there was loss or damage, and of what sorts, I concluded I had insufficient evidence to establish loss of investment opportunity to gain higher rental returns, although I also noted the plaintiff did not press that claim in closing submissions; loss on making the acquisition by paying too much for the Armadale property was made out, albeit at an amount arrived at by adjustment of the amount claimed; and loss of an opportunity to make an advantageous capital investment (capital investment opportunity) was also made out, albeit at an amount arrived at by adjustment of the amount claimed.
As to the issue whether aggravated or exemplary damages were recoverable, I concluded they were not.
As to the issue whether interest was recoverable, I concluded that it was.
There was a further substantive issue, however, as I have indicated. It was the subject of significant evidence and argument at trial, and produced an amendment of the plaintiff's statement of claim during the trial. It concerned whether the plaintiff had acted at the material times as trustee for the Frigger Super Fund (the superannuation fund of Mr and Mrs Frigger), in which case the defendants' contention was that the plaintiff had suffered no recoverable loss, but rather any such loss suffered was that of the Frigger Super Fund. The matter of whether there was a factual foundation for this contention occupied some considerable trial time, and was resolved against the defendants. Further, I determined that, even had the resolution of the factual issue been otherwise, the defendants' contention would have failed [8] - [11], [26] - [39].
9 For the reasons given in CAT WASC (S), I made my May 2009 costs orders on 6 May 2009. I set out those costs orders in full in Appendix 1 to these reasons.
10 An appeal was lodged against my judgment in the trial. In that appeal, my findings as to liability were not contested. The appeal was successful as to the bulk of the damages of $967,202.50 plus interest that I ordered. This resulted in a reduction of the award by a total amount of $681,578 plus interest, a reduction of damages awarded before interest of 70.5%. See the reasons of the Court of Appeal in Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183; (2009) 261 ALR 179 [45], [122] (Martin CJ, Buss & Newnes JJA agreeing) (PSA[No 2] WASCA) and Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) [21] (PSA[No 2] WASCA (S)).
11 That reduction came about as a result of a reduction of two parts of the damages that I awarded.
12 One reduction was of the $287,125 awarded for the loss on acquisition, by the amount wrongly included in that award of $6,500 assessed by way of penalty on stamp duty on the purchase. See PSA[No 2] WASCA [23], [50] - [52], [121] - [122].
13 The other reduction was of the damages that I awarded for what is referred to in CAT WASC (S) as a lost capital investment opportunity and what is referred to in PSA [No 2] WASCA [121] as a lost opportunity for alternative investment. This award had been of $675,078 before interest. The reduction was the removal of that whole amount as not having been properly awarded. See PSA[No 2] WASCA [37], [116] - [121].
14 Orders were made on the appeal in PSA[No 2] WASCA (S) [21] that included, materially for my purposes, the following:
8. The costs orders made on 6 May 2009 by the trial judge be set aside and the question of the costs of the trial be remitted to the trial judge for reconsideration in light of the reasons of this court.
15 It may be noted that the remitter described is for 'the costs of the trial'. It may further be noted from Appendix 1 that my May 2009 costs orders include, but extend beyond, 'the costs of the trial'. I consider that the effect of the orders made on the appeal is that either all of the proceedings the subject of my May 2009 costs orders were the subject of the remitter; or, to the extent that they were not, orders as to costs remain to be made on the proceedings in question.
16 After the appeal, a protracted period ensued during which, as I understood it, efforts were made to negotiate consent orders as to costs, principally in respect of the proceedings the subjects of my May 2009 costs orders. By orders I made on 18 February 2011, among other orders I gave leave to the first and second defendants to proceed with respect to applications seeking costs orders as described in certain minutes prepared by the defendants and filed on 3 February 2011.
17 Further efforts were then made to negotiate consent orders. Ultimately, these efforts were unavailing.
18 As a consequence, the defendants brought on the hearing of the applications that I have referred to. The defendants prepared for that purpose a document that consolidated the proposed costs orders in the minutes that I have also referred to.
19 That consolidation is by the Defendants' Minute of Proposed Costs Orders for Special Appointment 19 September 2014 at 10.00 am (the defendants' Minute). I reproduce the defendants' Minute in Appendix 2. In the defendants' Minute, proposed costs orders [1] to [8] cover the proceedings the subjects of my May 2009 costs orders.
20 As will be seen from Appendix 2, the defendants also seek costs orders in respect of certain proceedings outside my May 2009 costs orders. See proposed costs orders [9] to [24]. Most of these proposed costs orders are ones for proceedings of an interlocutory kind, the costs of which remain reserved.
21 I note at this point that by the orders I made on 18 February 2011 I granted the Friggers, as the sole shareholders and former directors of the plaintiff (now in liquidation), leave to conduct through a legal representative the defence of the plaintiff against the defendants' application for costs orders described in the minutes filed on 3 February 2011. In an affidavit dated 3 September 2014, Mrs Frigger provided evidence in support of an application by the Friggers to join the proceedings in CIV 2265 of 2006. I did not grant that application. See my reasons for that decision in Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 7] [2014] WASC 360. An annexure, AF 1, to Mrs Frigger's affidavit is a minute of proposed costs orders in the action, which the affidavit indicates the Friggers would seek on behalf of the plaintiff and themselves if they were joined in the action. As they were not joined, and no submissions referring to annexure AF 1 were made by counsel for CAT before me, I set that annexure aside.
22 I turn now to deal with the proposed costs orders in place of my May 2009 costs orders and certain closely related matters.
The proposed costs orders in place of my May 2009 costs orders
23 In the immediately following sections of my reasons, I deal with proposed costs orders [1] to [7] in the defendants' Minute and certain closely related matters.
Trial costs (proposed costs order [1])
24 I note that it was not in contest before me that the plaintiff's costs should be reduced by at least 10% to allow for its failure on a number of the causes of action on which it had relied at trial: see CAT WASC (S) [45] - [47].
25 Counsel for the plaintiff put to me that the further reduction for the plaintiff's failure in relation to the matter of loss of investment opportunity should be no more than 10%. This submission was based on the nature of the plaintiff's pleaded case as one in which, as I understood counsel's submission, that matter was not pleaded as a 'cause of action'; the time taken at the trial on that matter; its place in the opening and closing submissions for the plaintiff; and the space devoted to it in the trial judgment, CATWASC.
26 Counsel for the plaintiff directed my attention to Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166 [10] (Steytler & Wheeler JJ) as an authority dealing with costs orders where a head of damages was not proven. It was put to me that in Thiess the court held that the 'correct approach' to costs in such a case is to disallow the costs of proving the head of damages not proven.
27 In Thiess, the defendant had succeeded in defending a plaintiff's claim on grounds on which it claimed damages by counterclaim. On appeal, the defendant was held not to have proved its damages. The trial judge's award of the costs of the trial to the defendant, including the trial of the counterclaim, was left undisturbed, but with no order as to the defendant's costs of proving its damages in the counterclaim.
28 In my view the reference in Thiess [10] to 'the appropriate exercise of discretion', when read with [9], indicates that this matter is one of discretion, which in [9] is described as 'wide'.
29 Thus, I would not read Thiess as the plaintiff contends.
30 I consider that the appropriate exercise of discretion here is one that draws on the approaches taken to the two exceptions to the general rule as to costs in Rules of Supreme Court 1971 (WA) (RSC) O 66 r 1, as reviewed in Souter v Condor Developments Pty Ltd [2012] WASCA 227 [27] - [30] (Newnes JA, Buss & Murphy JJA agreeing):
It is trite law that the court has a very wide discretion as to costs, albeit it is a discretion to be exercised judicially. The general rule is that a successful party is entitled to an order for costs: O 66 r 1(1), Rules of the Supreme Court 1971 (WA). There are, however, two well-established exceptions to that rule to which it is necessary to refer.
First, where a party, although generally successful, has failed on some issue or issues which increased the costs of the action, the court may order the party to pay the costs of those issues: O 66 r 1(3). But that is a power to be exercised with caution and not as a matter of course. While parties should be encouraged to litigate only those matters which are properly and reasonably in issue, parties should not be dissuaded by the risks of an adverse costs order from canvassing all issues which might be material to the proper determination of a case: Keet v Ward [[2011] WASCA 139] [18]. Moreover, any practice of determining costs on the basis of a painstaking analysis of which party won on which issue would simply add to the time, costs and uncertainty of litigation: see Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) [6]. Such an approach may also fail to do justice in cases where the issues were intertwined or overlapped, or there was only one substantive issue. The exercise of the power to adjust an order for costs by reference to particular issues upon which an otherwise successful party has failed will ordinarily be appropriate only where the party has failed on discrete and severable issues which have added to the costs of the action in a significant and readily discernible way: Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) [7].
Where the court considers that an order as to costs should reflect the failure of the successful party on some issues in the action, the better approach will often be to award the successful party a proportion of its costs, or to make no order as to costs, rather than attempt to award costs to the respective parties on an issue by issue basis: Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85 [28]. Where a party is awarded only a proportion of its costs, the exercise of discretion involved will inevitably be more a matter of art than science, depending upon matters of impression and evaluation, and mathematical precision will be illusory: Amaca at [6]; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.
Secondly, where a plaintiff pleads two or more causes of action but succeeds on only some of those causes of action, the general rule is that the plaintiff is entitled to costs on the causes of action on which it was successful and the defendant is entitled to costs on the causes of action on which it was successful, as if separate actions had been brought: O 66 r 2(a). Again, and for similar reasons, an order of that kind is not to be made as a matter of course. It is necessary for the court to look at the realities of the case and attempt to do substantial justice in the particular circumstances. In some cases, while it might be strictly correct to say there are different causes of action involved, there may have been only one contest in substance. That will often be so where all causes of action arise out of the one course of dealings, the one transaction, or the same facts, in which case there would usually be one order for the general costs of the action, moulded as necessary to ensure that substantial justice is done: Permanent Building Society v Wheeler [No 2] (1993) 10 WAR 569 at 574 - 575; Keet v Ward [24].
31 The defendants rested their case for proposed costs order [1] largely on RSC O 66 r 2(a). However, in my view their case might better be rested on O 66 r 1(3). At the same time, it seems to me that under both provisions the better approach to costs in a case like this one would be to award the plaintiff a proportion of its costs, reflecting what matters it succeeded upon, but to reduce them by a proportion reflecting those matters on which the defendant succeeded, and thus for which the plaintiff would otherwise not have recovered its costs and in respect of which the defendants would otherwise have recovered their costs. This is my conclusion after looking at the realities of the case and attempting to do substantial justice in the particular circumstances. In taking that view and making that attempt, I have approached the matter as one of impression and evaluation. See Souter [29].
32 I have noted that a claim for damages for loss of investment opportunity was part of the plaintiff's pleadings: see PSA [No 2] WASCA [17]. Evidence adduced at trial in relation to that claim included evidence from the Friggers (see CAT WASC [377] - [379]; and PSA [No 2] WASCA [25]). It also included oral evidence from two valuers (CAT WASC [380], [384]; PSA [No 2] WASCA [27], [118]). I note that there is difficulty in disentangling much of the evidence in proof of the claim for loss of investment opportunity from proof of other matters of loss or damage, a point which counsel for the plaintiff appeared to accept in relation to evidence from the Friggers .
33 Loss of investment opportunity was a significant topic in the opening and closing submissions of both counsel, reflecting its significance to the total amount of compensation that the plaintiff sought and the contest between the parties with respect to it. That significance and contest are also reflected in my treatment of the issue in CAT WASC. See the treatment of it in [372] - [410], coming after the treatment of acquisition loss in [316] - [370]. Finally, I note the significance in the proportion of the damages award at trial of damages for loss of investment opportunity, being about 70%.
34 In my view, on the approach I have described, the appropriate figure to reflect the proportion of the costs of the trial for loss of investment opportunity is 20%. On that basis, the appropriate reduction of the plaintiff's costs in respect of loss of investment opportunity, to allow for the proportion of the plaintiff's costs it would not be able to recover (20%), and the proportion of the defendants' costs they would be able to recover (20%), would be 40%, to be added to the 10% reduction I have previously described. I consider that the proportion of the costs of the trial contended for by the defendants, 25%, is too large, albeit not by a large proportion. That is because I consider it does not make sufficient allowance for the plaintiff's success on liability.
35 I would make proposed costs order [1], but change the figure of 40% to 50%.
Trial costs (proposed costs orders [2] to [5])
36 These proposed costs orders are almost identical to my May 2009 costs orders [3] to [6].
37 The plaintiff does not oppose the making of these proposed costs orders. I consider that PSA [No 2] WASCA does not reach any of the matters the subject of these orders. In my view they are appropriate.
38 I would make proposed costs orders [2] to [5].
No costs order for transcript of trial
39 Order [2] of my May 2009 costs orders provided for the costs of a transcript of the trial. As a result of the orders of the Court of Appeal in PSA [No 2] WASCA there is no such order at present. The defendants contended that there should be none or at most an order for only 50% of the costs of the transcript. There were no submissions or concessions from the plaintiff in respect of this matter.
40 I consider that PSA [No 2] WASCA does reach this matter.
41 Counsel for the defendants put to me that the trial would probably only have run for about three to four days, rather than the 11 days it did run, had the trial been concerned only with the issues in relation to which the plaintiff was successful. Further, detailed written closing submissions including references to the transcript would not have been required for a short trial of that kind.
42 However, in my view the trial would not have been as short as the defendants contended. Further, in view of the other issues it is not clear to me that detailed written closing submissions with references to transcript would not have been required.
43 The defendants also contended that it was reasonable to expect parties to confer in relation to obtaining a transcript. There was no evidence of such conferral. The defendants submitted that, if conferral had occurred, the parties would have shared the costs of the transcript.
44 However, it is not apparent to me that, accepting the reasonableness of an expectation of conferral and that there was no conferral, it is possible readily to say what allocation of transcript costs would have been arrived at between the parties.
45 In my view the appropriate order to make, which I would make, is for there to be a certificate for the transcript of the trial by which the plaintiff would be permitted to recover the same proportion of the costs of the transcript as the costs of the trial; that is to say, 50%.
46 Thus, in effect I have arrived at the same view as that put in the alternative by the defendants, but for different reasons.
No special costs orders from my May 2009 costs orders
47 My May 2009 costs orders provided in orders [7] and [8] for certain special costs orders. As a result of the orders of the Court of Appeal in PSA [No 2] WASCA there are no such orders at present. The defendants contended that there should be none. The plaintiff called for the reinstatement of the special costs orders, save for orders [7(a)] (statement of claim) and [8(f)] (directions hearing on 29 October 2007). Such reinstatement would be under Legal Profession Act 2008 (WA) s 280(2).
48 I understood it to be accepted by the parties that the general principles for the making of special costs orders under the predecessor provision to s 280(2), Legal Practitioners Act 2003 (WA) s 215, as stated in CAT WASC [106] - [164], especially those described in Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S), EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) and Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2), applied here.
49 I will deal with the special costs orders, other than [7(a)] and [8(f)], which I would not make, individually.
50 As to my May 2009 costs order [7(b)] (special costs order for getting up), it is undoubtedly the case that matters to do with the issue of loss of investment opportunity represented ones of significance to my arrival in CAT WASC (S) at the view that there was a showing of unusual difficulty and complexity (see CAT WASC (S) [174]). That significance, of an issue on which the plaintiff failed by virtue of PSA [No 2] WASCA, is something which I may take into account in determining whether to make the special costs orders now sought: Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S) [20] (Pullin, Newnes & Murphy JJA).
51 The matter is, however, complicated by reason of the combination of the issue of loss of investment opportunity with other matters.
52 I must therefore consider whether, taking account of its significance, I should in accordance with the approach in Heartlink, EDWF 1 and Verdell (see CAT WASC (S) [110], [114], [118]) form the same view as to the second component of the opinion described in Heartlink [11] that I reached in CAT WASC (S). I note that no new evidence has been laid before me with respect to this matter.
53 In my view, on that approach I do not find unusual difficulty or complexity, absent the loss of investment opportunity claim.
54 Before me on the present application the plaintiff relied on the claims it had made at trial as to fraud, which were made out as to some, but not all, of the representations or forms of conduct of the defendants that it relied upon (see CAT WASC (S) [33]). The plaintiff's present submissions included that the difficulty and complexity in trials of the present sort, arising out of the use of financial data in evidence and proof of reliance on representations, made its case for special costs orders good.
55 However, it was not apparent to me that considerations of those kinds, of themselves, warranted special costs orders. No authorities in that regard were cited to me. Nor as a matter of impression was it apparent to me that financial data or reliance issues had in the trial such a character as to warrant description as issues of unusual difficulty or complexity.
56 I would not make a special costs order in the terms of my May 2009 costs order [7(b)].
57 As to my May 2009 costs order [7(c)] (solicitor attending trial), I was not presented with any argument as to why such an order should be reinstated, save (as I understood the matter) the same arguments as for [7(b)] (getting up). I note in that regard CAT WASC (S) [196], [204] where I referred, in relation to the special costs order I made in the present respect, to the same considerations in combination as for the special costs order for getting up.
58 For the reasons stated in respect of [7(b)], I would not make a special costs order in the terms of my May 2009 costs order [7(c)].
59 As to my May 2009 costs order [7(d)] (solicitor's attendance at last day of trial, including closing submissions), I note that the same circumstances apply as for my May 2009 costs order [7(b)] (getting up). I also note in that regard CAT WASC (S) [207], [210] and [212], where I referred, in relation to the special costs order I made in the present respect, to the same considerations in combination as for the special costs order for getting up.
60 For the reasons I gave in relation to that special costs order, I would not reinstate my May 2009 costs order [7(d)].
61 As to my May 2009 costs order [8(a)] (security for costs application heard 26 April 2007), this concerned an application heard and determined by Le Miere J of this court. See CAT WASC (S) [179] - [189]. As I understood the submissions made to me for the purposes of what became costs order [8(a)], the unusual difficulty or complexity of this matter had to do with the defendants making their application in the very short period before trial (see [186], [189]), as well as certain features of the application itself (see [182], [189]). No fresh evidence was put before me in that regard. It was not apparent to me that the loss of investment opportunity claim had any significance in relation to this matter. No other basis for not making the order was put to me by the defendants.
62 I would make a special costs order in the terms of my May 2009 costs order [8(a)].
63 As to my May 2009 costs order [8(b)] (counsel fee on brief and first day of trial), I note that the same circumstances applied as for my May 2009 costs order [7(b)] (getting up). I note in that regard CAT WASC (S) [204] where I referred, in relation to the special costs order I made in the present respect, to the same considerations in combination as for getting up (see [174]).
64 For the reasons stated in respect of [7(b)], I would not make a special costs order in the terms of my May 2009 costs order [8(b)].
65 As to my May 2009 costs order [8(c)] (counsel fee on second and subsequent days of trial), I note again that the same circumstances applied as for my May 2009 costs order [7(b)] (getting up). I note in that regard CAT WASC (S) [204] where I referred, in relation to the special costs order I made in the present respect, to the same considerations in combination as for getting up (see [174]).
66 For the reasons stated in respect of [7(b)], I would not make a special costs order in the terms of my May 2009 costs order [8(c)].
67 As to my May 2009 costs order [8(d)] (counsel fee for last day of trial including closing submissions), I note once more that the same circumstances applied as for my May 2009 costs order [7(b)] (getting up). I note in that regard CAT WASC (S) [212] where I referred, in relation to the special costs order I made in the present respect, to the same considerations in combination as for getting up (see [174]).
68 For the reasons stated in respect of [7(b)], I would not make a special costs order in the terms of my May 2009 costs order [8(d)].
69 As to my May 2009 costs order [8(e)] (plaintiff's application for freezing orders 8 and 11 January 2008), the applications were respectively for freezing orders I made and for the variation of those orders by Hasluck J. See CAT WASC (S) [215]. I call those orders the plaintiff's freezing orders. As I understood the submissions to me for the purposes of what became my May 2009 costs order [8(e)], the unusual difficulty or complexity of this matter had to do with the complexity of the affairs of the defendants, coupled with the history of the hearings in relation to the plaintiff's freezing orders (see [220]). No fresh evidence was put before me in that regard. It was not apparent to me that the loss of investment opportunity claim had any significance in relation to this matter. No other basis for not making the order was put to me by the defendants.
70 I would make a special costs order in the terms of my May 2009 costs order [8(e)].
71 In summary, I would not reinstate any of the special costs orders save for my May 2009 costs orders [8(a)] and [8(e)].
Costs of applications for special costs orders (proposed costs order [6])
72 I understood this proposed costs order to relate to the area previously covered by my May 2009 costs order [9]. That area covered the costs of the application for what became my May 2009 costs orders. It was thus not fully described as an application for special costs orders. However, I have retained that description.
73 I return to the matter of the exclusion and reservation of the costs of the Magistrates Court proceedings in my May 2009 costs order [9] below.
74 As to proposed costs order [6], I consider that as a result of my re-consideration of my May 2009 costs orders in light of PSA [No 2] WASCA the orders I would make would in effect reinstate my May 2009 costs orders [3] - [5] and [8(a)] and [8(e)] and partially reinstate order [2] of those orders. I further note that, as I explain below when I reach the costs of the Magistrates Court proceedings, I would in effect reinstate a portion of my May 2009 costs order [9] and also in effect reinstate [10]. However, otherwise I would make substantially different orders from my May 2009 costs orders, to the effect or largely to the effect of the orders sought by the defendants. Those orders include a substantial modification to the costs of the cause, which I would make in proposed costs order [1], modified as I have already described.
75 I am unable to accept the defendants' argument that, because the Court of Appeal set aside my May 2009 costs orders, the costs should follow the event and proposed costs order [6] should be made. The event was described as the successful appeal in PSA[No 2] WASCA and the consequent decision as to costs. In my view, this argument does not account for the extent to which costs incurred before that setting aside were not 'wasted'.
76 As a matter of impression, I consider that to reflect the extent to which I would reinstate my May 2009 costs orders, but also to reflect the comparative significance of the proposed costs orders that I would make in the place of some of those orders (particularly the change in the costs of the cause), I should make proposed costs order [6], but only for 80% of the defendants' costs.
Taxation and directions hearings in relation to taxation (proposed costs order [7])
77 This proposed costs order relates to the taxation of costs under my May 2009 costs orders. Following the first of the directions hearings referred to in proposed costs order [7], that taxation was adjourned. It was not in contest that the adjournment was because of an application of the plaintiff for the registrar concerned to recuse himself. At the taxation only two items were taxed from the plaintiff's bill of costs. After the second directions hearing, at which programming orders were made, the taxation did not proceed. This followed the decision of the Court of Appeal on 23 October 2009 when it handed down the judgment in PSA [No 2] WASCA.
78 It was not in contest that I had the power to make proposed costs order [7], by virtue of the reservation of costs at the directions hearings.
79 I would make proposed costs order [7]. The effect of the orders I would make in the areas covered by my May 2009 costs orders would substantially vary the basis on which taxation in this matter would proceed.
80 It might be contended that there was a substantial portion of the work done in the taxation that would not be affected by those orders. I would identify that portion as the determination of the costs of the action in the area now covered by proposed costs order [1].
81 However, I note that it was not in contest that at least part of the basis for the defendant's application at the directions hearing on 24 August 2009 to adjourn the taxation was the pendency of the Court of Appeal judgment in PSA [No 2] WASCA, and as a result of that judgment my costs orders were set aside. Ultimately, as I have explained, that was at least part of the basis of the adjournment of the taxation, which did not subsequently proceed.
82 In my view, those circumstances make it inappropriate to treat all or any portion of the costs sought by proposed costs order [7] otherwise than in accordance with the terms of that proposed costs order.
Costs in the Magistrates Court
83 I have previously referred to the exclusion and reservation of these costs in my May 2009 costs orders. I also note in that regard my May 2009 costs order [10].
84 On one view of proposed costs order [6] the defendants propose no order as to costs in the Magistrates Court. However, in their submissions of 11 December 2009 the defendants argued (as I understood them) that there should either be no order as to the costs the subject of the application referred to in my May 2009 costs orders [9] and [10] or that these costs should be in the same proportion as in what became proposed costs order [1], and in accordance with the relevant scale for costs, the Legal Practitioners (Local Court) (Contentious Business) Determination 2002 (WA).
85 The defendants' written submissions for the present application incorporated the submissions of 11 December 2009 by reference.
86 The plaintiff's only submissions with respect to costs in the Magistrates Court were, as I understood, its written submissions to the effect that my May 2009 costs order [10] had not been set aside. For reasons which I gave earlier, I do not consider that to be correct.
87 I have noted what appears in the defendants' submissions of 11 December 2009 as to those costs items which were the subject of the application referred to in orders [9] and [10] of my May 2009 costs orders. Only three are identified. However, as I have indicated, whether or not what appears there is correct, the plaintiff does not consider that it has such an application pending before me, at least until it exercises the liberty to apply in my May 2009 costs order [10].
88 I would treat the position of the plaintiff as one calling for orders to reinstate the reservation of the costs in the Magistrates Court in my May 2009 costs order [9] and the liberty to apply in order [10]. I do not consider that the reasons in PSA [No 2] WASCA reach the areas of those orders.
89 I consider that in all the circumstances I should make orders to those effects, but with a modification.
90 I do not consider that it would be appropriate to go on to deal with the application for the costs which are reserved, which at present the plaintiff does not consider itself to have pending before me.
91 However, I also consider that I should modify the liberty to apply in my May 2009 costs order [10] to permit the defendants, as well as the plaintiff, to bring the application for costs referred to there and in order [9] back before the court so that the matter may be resolved expeditiously.
92 I turn now to the other proposed costs orders; the ones not related to my May 2009 costs orders.
The other proposed costs orders
93 Here I deal with proposed costs orders [8] to [24].
Defendants' summons dated 10 November 2008 (proposed costs order [8])
94 In the written submissions for the defendants related to proposed costs order [8], this order appeared to be modified to claim 2/3 of the costs applicable to the two days of hearings on the chamber summons and the other costs of the chamber summons, in both cases on an indemnity basis. I treat proposed costs order [8] as so modified.
95 The chamber summons dated 10 November 2008 was one to vary the plaintiff's freezing orders, which I made on 8 January 2008 on an application by the plaintiff.
96 It was not in contest that, by that chamber summons, the defendants sought to have the plaintiff's freezing orders varied to allow the second defendant and the widow of the late Mr Banning to take certain actions. Those actions included ones in effect allowing Banning Holdings Pty Ltd (BH) to seek out finance to pay the judgment debt to the plaintiff, utilising BH's assets to secure this finance. BH was a company controlled by Mr Banning until his death on 8 September 2008. The only other shareholder was his widow, who had not been involved in the management of BH before Mr Banning's death, but who became involved after he died.
97 The application on the chamber summons was granted for the most part and costs were reserved. The parts in respect of which the application was not granted were ones that counsel for the defendants had indicated were not being pursued at the hearing on the chamber summons.
98 For the plaintiff, it was contended before me that there was no reason to make proposed costs order [8]. This was on five bases.
99 First, the variations sought permission for conduct not prohibited by the plaintiff's freezing orders.
100 Second, the variations sought were unnecessary in any event as the parties to CIV 2265 of 2006 had agreed a way to pay the plaintiff's judgment and costs.
101 Third, BH was not an innocent non-party to the proceedings, and thus was not a person to which the principle in Norilya Minerals Pty Ltd v Ireland (1994) 12 WAR 485, 488 (Kennedy J) could apply.
102 Fourth, BH had volunteered to pay the judgment debt, for which it was not liable.
103 Finally, fifth, BH had adduced no evidence of separate costs that it had incurred and, in particular, was not separately represented at hearings on the chamber summons.
104 I put aside the matter of whether or not BH had been formally joined to the proceedings at any time. Formal joinder does not appear to me to be necessary for the application of the principle in Norilya, and no authority to the contrary effect was cited to me.
105 As to the first basis, it was common ground that the plaintiff's freezing orders were made to ensure that the judgment debt would be paid. However, it was not made apparent to me that express permission for conduct as sought by the chamber summons was not reasonably sought. The conduct was in effect to seek out finance on the assets of BH, an activity which might not have been successful in producing a sum which would meet the entirety of the judgment debt. Indeed, as I will explain, efforts in this instance did not succeed. Further, the plaintiff, initially at least, resisted the application. This resistance included resistance in relation to the order that was ultimately made on the chamber summons permitting the actions of BH and Mr Banning's widow that I have referred to.
106 As to the second basis, there was a sharp contest between the parties as to whether an agreement of the sort referred to was in fact arrived at. I determined at the hearing on 6 October 2014 that I would take into account as evidence for that purpose an affidavit of Mrs Frigger sworn 10 September 2014 and annexures; and an affidavit of Mr David Abraham Lenhoff sworn 19 September 2014 and annexure. Mr Lenhoff was the defendants' solicitor at the time of the alleged agreement relied upon by the plaintiff.
107 On the basis of that affidavit material, I am not satisfied that any agreement had been reached. The affidavit of Mr Lenhoff describes a course of negotiations that did not result in an agreement: see [4]. The evidence relied upon for an agreement in the affidavit of Mrs Frigger (annexure AF 2) is insufficient to support the conclusion that one was reached, tending rather to support the conclusion that negotiations were on foot that had not been concluded. There is nothing in the records or my recollection of the hearing of the chamber summons on 20 and 21 November 2008 to indicate otherwise.
108 As to the third basis, Norilya (488) is authority for the proposition that if a person obtains an order of the court affecting assets in the hands of a third party, and that order is later varied at the instance of the third party so as to exclude assets in their hands, all of the innocent third party's costs should be paid by that person unless those costs are unreasonable. See also Civil Procedure in Western Australia, accessed 18 March 2015 [66.1.16 C].
109 No objection was taken to the claim before me for the costs of BH on the basis of lack of standing or that counsel for the defendants had no right to also act for BH in that regard.
110 This is save for the reference made by counsel for the plaintiff to the non-joinder of BH, to which I have already referred.
111 Counsel for the plaintiff referred me to evidence on which (at least in part) the plaintiff’s freezing orders were made. This was evidence that BH had, in early 2008, lodged a mortgage on title to an asset of the first defendant. Counsel for the defendants appeared to me to accept that at least while BH was under the sole control of Mr Banning it could not be regarded as an innocent third party. However, after his death, counsel for the defendant submitted, on the basis of the duties of an executor of the estate of Mr Banning and the position of his widow as the other shareholder and director of BH, the company became such a third party.
112 I accept this submission. While no authority on this point was cited to me, it seems to me that the position of BH is analogous to the position of a bank at which a joint debtor has an account seeking authority to make payment from that account to satisfy a judgment debt. As I understood the matter that was the position in Norilya. BH was not a party to CIV 2265 of 2006. Neither was Mr Banning's widow. Permission for her to act in collaboration with the second defendant in a way that might result in BH dealing with its assets to enable the judgment debt to be paid should, in my view, be seen as permission given to an innocent third party. In my view, the Norilya principle applies to the securing or confirmation of that permission.
113 As to the fourth basis, it does not seem to me that this affects the application of the Norilya principle. For my purposes, it must be taken that the directors of an innocent corporate third party might properly determine that it would be in the best interests of that third party to meet a debt for which it is not liable.
114 As to the fifth basis, it does not seem to me that there are matters there that affect the application of the Norilya principle. It will be for BH to show at taxation that it has incurred costs, although not that they are necessary, proper or reasonable. It will recover those costs that it is able to show unless they are shown to be unreasonable. See Forbes v Frigger [2009] WASC 77 [60] (Hasluck J).
115 This takes me to the modified form of order [8] which I referred to at the outset of this section of my reasons. Although the matter was not explained to me in these terms, it seems to me that the abatement of 1/3 is to reflect the fact that at the hearings of the chamber summons only a part of the application by the chamber summons was sought. On that analysis, I would make an order in terms of the modified order [8], but with the further modification that the same abatement apply to the other costs of the application, to the extent that proposed costs order [8] provides for different treatment. I do not see any reason why the same analysis does not also apply to those costs.
Defendants' summons dated 10 November 2008 (proposed costs order [9])
116 The costs sought here are not indemnity costs. No objection was taken to their quantification in proposed costs order [9].
117 The plaintiff's written and oral submissions appeared to rest its opposition to proposed costs order [9] on three bases.
118 One basis was basis (1) in the previous section of these reasons. I consider I have already dealt with that basis sufficiently for the purpose of the present proposed costs order.
119 The second basis for the plaintiff's opposition to proposed costs order [9] was that the application for variation of the plaintiff's freezing orders did not contemplate raising sufficient funds to pay the judgment debt as well as the plaintiff's legal and enforcement costs. Thus, it was reasonable to oppose the application.
120 In my view, that basis falls away when it is remembered that the plaintiff's freezing orders were made to ensure payment of the judgment debt as described without reference to legal or enforcement costs. I was not referred to any evidence to contradict the evidence put on by the defendants that I have referred to as to the purpose of the variations being to seek out finance to pay the judgment debt.
121 The third basis for the plaintiff's opposition to proposed costs order [9] was that the plaintiff had already been awarded the costs of the plaintiff's freezing orders and all applications under those orders ought to be costs in the cause of the plaintiff's freezing orders application. Allied to this basis appeared to be the plaintiff's submissions that the applications to vary freezing orders were enforcement costs incurred by a successful plaintiff which had not been paid its judgment debt.
122 However, I was not directed to the terms of any previous costs order that were expressed to determine the costs of subsequent applications to vary the plaintiff's freezing orders.
123 Further, I note the authority that freezing orders are made to render the administration of justice effective and to prevent abuse and not, when expressed in general terms, to protect the interests of the plaintiff: see Civil Procedure in Western Australia [52A.0.3] and the authorities there referred to. Nor are freezing orders to be viewed as security for the payment of the judgment debt or other amounts payable to a judgment creditor by court order. See Civil Procedure in Western Australia [52A.0.8], referring to authority.
124 It seems to me to follow from these principles that the costs of subsequent applications to vary freezing orders are not in any sense determined by the order for costs of the plaintiff's freezing orders themselves. It may be noted that normally costs on the making of a freezing order will be the costs of the underlying dispute. See Frigger v Professional Services of Australia Pty Ltd [No 3] [2014] WASCA 69 [110] (Pullin & Newnes JJA). However, it is not apparent to me that this applies to the costs of applications to vary freezing orders.
125 I would not uphold the plaintiff's contentions.
126 I would make proposed costs order [9].
Defendants' summons dated 19 December 2008 (proposed costs order [10])
127 This application by chamber summons was for the discharge of the plaintiff's freezing orders, or in the alternative for a number of variations to them. The purpose of the application, as set out in the affidavit of the second defendant in support of it and as described at the hearing of the application on 23 December 2008, was to enable BH to borrow funds to pay the judgment debt to the plaintiff. It appeared at the hearing on 23 December 2008 that Mr Banning's widow was to be the source of most of the monies required. The determination of the application was opposed by the Friggers, who appeared in the absence of a legal representative of the plaintiff. The hearing was adjourned with costs reserved.
128 Subsequently, the opportunity to obtain the funds was lost, as explained in the affidavit of the second defendant of 16 March 2009 [2]. The application for discharge or variation did not proceed. I was told that attempts were made to have costs issues under it determined in or around September or October 2009. At that time, further affidavit material was filed.
129 I consider that the reservation of costs on 23 December 2008 extended to the costs of the application as adjourned, including the costs of efforts to finalise that application and, in turn, the costs of efforts to determine those costs.
130 For the plaintiff it was contended, as I understood its counsel's submissions, that proposed costs order [10] should not be made on the bases (1) to (5) discussed above in relation to proposed costs order [8]. I consider that I have already dealt with those bases sufficiently for the purposes of proposed costs order [10].
131 However, I should note that the application by chamber summons of 19 December 2008 was never determined, in the circumstances I have described. At the same time, I do not consider that this affects the application of the Norilya principle. Even if it did, I consider, based on the analysis of the matter of lack of determination that I undertake below in connection with proposed costs order [11], that I should nonetheless make proposed costs order [10].
132 I would make proposed costs order [10].
Defendants' summons dated 19 December 2008 (proposed costs order [11])
133 The costs sought in this proposed costs order are not indemnity costs. No objection was taken to their quantification.
134 The plaintiff's written and oral submissions appeared to rest its opposition to this proposed costs order on the same three bases as for its opposition to proposed costs order [9]. I consider that I have sufficiently dealt with those three bases in that context for the purpose of proposed costs order [11].
135 However, there is a further matter in respect of proposed costs order [11]; there was no determination of the application by the chamber summons. I have already described the background to that lack of determination.
136 For the defendants, as I understood their submissions, it was put to me that I should approach this matter on the basis that the defendants would have obtained the variations they sought had the matter been fully argued. In that regard, it was put to me that there was no evidence before me that the application would have failed by reference to any prejudice to the plaintiff from the variations sought.
137 There was no contest that the basis for the adjournment of the hearing of the chamber summons was to allow for the legal representative of the plaintiff to address the matter of prejudice, following an earlier opportunity to undertake such an address during the process of conferral.
138 I consider that I should feel confident that the defendants were almost certain to have succeeded had the application been fully argued. In reaching that view I have also had regard to the result of the application by chamber summons of 10 November 2008, as well as the result of the application by chamber summons of 27 March 2009. I reach the latter chamber summons below. See Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 - 625 (McHugh J).
139 On that basis, I would make proposed costs order [11].
140 In any event, I have noted the submissions of the defendants resting on evidence that the plaintiff had, through its directors seeking the adjournment, been acting to ensure that its directors could purchase a share of BH from the receiver of that share appointed on the plaintiff's application. See the affidavit of the defendants' solicitor, Cameron Eastwood, sworn 12 August 2009 (in support of the defendants' application for costs of the chamber summons) [2] and annexure 1; see also the affidavit of the second defendant sworn 16 March 2009 [8] - [13] and [14] - [20]; and Mr Eastwood's affidavit of 12 August 2009 (in support of the defendants' application for removal of the receiver) annexure 6, pages 25 - 32.
141 The submissions of the defendants were that the plaintiff had not been acting, as had been put to the court at the adjournment hearing of the chamber summons, to allow for its legal representative to address the matter of prejudice to the plaintiff as previously described. Rather, the plaintiff had been acting to ensure its directors could purchase the share I have referred to.
142 On the evidence I have referred to, which was not contradicted in any other evidence to which my attention was drawn, I would draw the inference that the defendants' submissions invited me to draw.
143 However, I consider that I do not need to determine whether or not the purchase of the share was expected to be, or was, at an undervalue, as the defendants also contended. In my view, the inference I have drawn is sufficient to represent improper or at least unreasonable conduct in the proceedings in respect of the application by chamber summons of 19 December 2008.
144 Such conduct when shown would warrant making an indemnity costs order. See Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [9] (Pullin JA). It would do so here.
145 As I have said, proposed costs order [11] is not an indemnity costs order. However, the order sought is in my view warranted also by reference to the principle in Flotilla Nominees [9], as I have applied that principle here.
146 I would make proposed costs order [11].
Defendants' summons dated 27 March 2009 as amended in April 2009 (proposed costs order [12])
147 The application by this chamber summons was for variations to the plaintiff's freezing orders to permit the first defendant to enter into a deed of company arrangement (the DOCA) and to allow BH to sell certain assets to provide funds for BH to pay the judgment debt to the plaintiff and still retain $300,000 for the estimated costs of the action (CIV 2265 of 2006).
148 The application was opposed. The hearing was over three days. It was not in contest that the application was successful in terms of achieving the purpose described.
149 For the plaintiff it was contended, as I understood its counsel's submissions, that proposed costs order [12] should not be made on bases (1) to (5) described in the section of these reasons on proposed costs order [8]. I consider that in that context I have already dealt with those bases sufficiently for the purposes of proposed costs order [12].
150 On the basis of Norilya, I would make proposed costs order [12].
151 I note the alternative basis for making proposed costs order [12] put forward by the defendants. It is the application of the principle in Flotilla Nominees [9] in a similar, although not identical, way to that which I considered in relation to proposed costs order [11].
152 The difference lay (as I understood the matter) in the fact that here there was no active misleading of the court by omission to refer to the Friggers' interest in an alternative transaction, the purchase of the share held by the receiver, as a way of meeting the judgment debt. However, based on the matters to which counsel for the defendants drew my attention - the amount likely to be yielded by the sale of the share, compared with the amount that was likely to be paid under the DOCA - the view might be taken that the plaintiff was being used in an effort to secure a transaction more advantageous to the Friggers and less advantageous to the plaintiff than the transaction that the variations to the plaintiff's freezing orders sought by the chamber summons were to facilitate. I note the amount realised from the sale of the share, $730,000, referred to in Frigger v Campbell-Smith [2010] WASC 353 [14] (Kenneth Martin J). I further note the amount paid under the DOCA, $1,165,661.54, referred to in Computer Accounting and Tax Pty Ltd (in liq) v Professional Services of Australia Pty Ltd [No 2] [2010] WASC 318; (2010) 246 FLR 143 [59] (Simmonds J) (CAT [No 2] WASC).
153 In my view, the submissions for the plaintiff that might be seen as relevant to this issue were no answer. Those submissions were that the transaction the variations were to facilitate would not yield sufficient funds to pay the judgment debt and the plaintiff's (estimated) legal and enforcement costs.
154 I consider that the alternative basis is made out for my purposes and that it would also warrant making proposed costs order [12] as an indemnity costs order.
155 I would make proposed costs order [12].
Defendants' summons dated 27 March 2009 as amended in April 2009 (proposed costs order [13])
156 Proposed costs order [13] is not an order for indemnity costs, although indemnity costs for the defendants might be warranted on the basis just considered.
157 As I have previously noted, it was not in contention that the application under the chamber summons was successful. On that basis, making proposed costs order [13] would be warranted.
158 The plaintiff's written and oral submissions appeared to me to rest their opposition to proposed costs order [13] on the same three bases as for its opposition to proposed costs order [9]. I consider I have sufficiently dealt with those bases in that context for the purposes of the present proposed costs order.
159 I note the matter of the uplift of the scale in proposed costs order [13], which the submissions for the plaintiff did not address.
160 As to that uplift, I have in this judgment previously referred to my understanding of the principles applicable to making special costs orders as stated in CAT WASC (S) [106] - [164]. See also Wainwright [7] - [9] (Pullin, Newnes & Murphy JJA). I have also referred to my understanding that the parties accepted that statement of principles.
161 In respect of the first of the two determinations required to be made for a special costs order, inadequacy of the amount of costs allowable under the applicable costs determination, I have noted the length of time that the hearing occupied, on 16, 17 and 20 April 2009, and the range of issues canvassed over those days. As presiding judge, I have concluded, despite the lack of affidavit evidence in support, that the inadequacy requirement is met. See on that approach CAT WASC (S) [111], [115], [118] and [120], and the authorities quoted from or referred to there.
162 In respect of the second of the two determinations required to be made for a special costs order, unusual difficulty, complexity or importance, the same matters as I have just referred to in my view go to show unusual difficulty. See on 'unusual difficulty' Wainwright [9], which is the test I have used here.
163 Further, the same matters are the basis on which I would exercise my discretion to make the special costs order in proposed costs order [13]. Nothing was put against my exercising my discretion to make that order. See, on the discretion, CAT WASC (S) [137] - [141].
164 I would make proposed costs order [13].
Plaintiff's summons dated 27 August 2009 (proposed costs order [14])
165 This was an application by the plaintiff to vary the plaintiff's freezing orders in a number of respects. For the reasons given in Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 4] [2009] WASC 407 (CAT [No 4] WASC), I determined that the application should not be granted and the costs of the application, including any costs claimed by the receiver (see proposed costs order [16], below), should be reserved to the hearing of the application in CIV 2265 of 2006, listed for 7 October 2009. It was not in contest that the matter of those reserved costs was not so addressed, and those costs remained reserved. This was with the exception of the matter of the costs of the receiver, to which I will return in connection with proposed costs order [16].
166 In CAT [No 4] WASC I indicated, at [87] - [89], that based on the principles in authorities like Norilya 'on the face of the matter' a costs order like that in proposed costs order [14] should be made. However, I did not express a final view as 'neither counsel addressed in their oral submissions the costs orders I should make in the event I dismiss[ed] the plaintiff's application', which I did: CAT [No 4] WASC [89].
167 For the plaintiff it was contended, as I understood its counsel's submissions, that proposed costs order [14] should not be made on the bases (1) to (5) described in the section of these reasons on proposed costs order [8]. I consider I have sufficiently dealt with those bases in that context for the purposes of proposed costs order [14].
168 On the basis of Norilya, I would make proposed costs order [14].
Plaintiff's summons dated 27 August 2009 (proposed costs order [15])
169 The plaintiff's submissions appeared to me to rest the plaintiff's opposition to this proposed special costs order on the same three bases as for its opposition to proposed costs order [9] above. I consider I have sufficiently dealt with those bases in that context for the purposes of the present proposed costs order. I return below to the matter of the uplift sought.
170 I have noted the reference in the plaintiff's written submissions ([46] - [50]) to the support for the plaintiff's application from the receiver, who had not been paid his costs and expenses, and who was still owed a significant amount; and to the second defendant's loss of control of Mr Banning's estate and the insolvency of the first defendant, in circumstances where the Friggers were still owed legal and enforcement costs and amounts were still owed to the receiver.
171 I consider that I do not need to go into what support, if any, there is for those contentions. Even if I accepted them, I do not consider it was made apparent to me that they added to the three bases referred to, other than to support an argument that the application by the chamber summons of 27 August 2009 should have succeeded. In my view it was not made apparent to me that, even if those contentions were accepted at face value, the application would have succeeded. Nor was my attention directed to any authorities to the effect that a conclusion of the kind contended for should lead to the denial of costs to a successful party. Rather, the matter would appear to go to the merits of an appeal, at least where there was no showing of impropriety by the successful party. I consider that there was no such showing here.
172 As to the matter of the uplift of the scale in proposed costs order [15], on the approach to the making of special costs orders that I referred to and applied in connection with proposed costs order [13], I would make the special costs order in proposed costs order [15]. I have determined the inadequacy requirement is met despite the lack of an affidavit in support, having regard to the length of time the hearing occupied on 11, 14 and 15 September 2009 and the range of issues canvassed over those two days, as indicated by CAT [No 4] WASC. I further consider that the same matters go to show unusual difficulty. Those matters are also the basis on which I would exercise my discretion to make the special costs order sought. Nothing was put against my exercising the discretion in that way.
173 I would make proposed costs order [15].
Plaintiff's summons dated 27 August 2009 (proposed costs order [16])
174 At the hearing before me on 6 October 2014, counsel for the defendants indicated that this proposed costs order was not pressed.
175 I noted at that time that there were in any event two difficulties with making it.
176 One difficulty was the absence of the receiver, through counsel or otherwise, before me. This was the basis for the opposition put in the plaintiff's written submission on the present proposed costs order. However, there were no oral submissions directed to the matter.
177 The other difficulty I referred to was that a similar order, or at least one covering the ground in proposed costs order [16], was sought in the application to discharge the receiver. For the reasons given in CAT [No 2] WASC, I made orders for the discharge of the receiver. However, as those reasons indicate, I considered that it had not been shown to me that an order should be made of a kind similar to, or covering the ground of, proposed costs order [16]. See [179] - [184].
178 I should also note that whether the receiver in a taxation or assessment of his costs succeeds in any claim to such costs is, in my view, a matter for the relevant officer, not for me.
179 I would not make proposed costs order [16].
Defendants' Minute of orders of 12 March 2009 (proposed costs orders [17] and [18])
180 The costs sought here are those of the defendants. They are costs that counsel for the defendants explained to me are to be fixed in the amount of $695, as provided for by the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 (WA). No objection was taken to that quantification. I consider that it is the appropriate amount for the purpose of this matter, subject to a brief observation that I will make shortly.
181 The matter was proposed orders sought by the defendants varying the plaintiff's freezing orders, which formed part of the application by the Minute which was dated and filed 12 March 2009. That application was pursuant to the liberty to apply contained in one of the orders that I made in chambers on 21 November 2008. The proposed variation orders were twofold.
182 They were to add or substitute words in the plaintiff's freezing orders, firstly, in the provision permitting the payment of the first and second defendants' 'ordinary living expenses', order [10(a)], and secondly, in the provision permitting the first and second defendants' 'reasonable legal expenses', order [10(b)]. In the first case, the variation was to substitute for the reference in order [10(a)] to the first and second defendants' 'ordinary living expenses' a reference to a fixed amount of $300 per week towards the ordinary living expenses of Mr Banning's widow. I call this the ordinary living expenses variation.
183 The second form of variation order was to add words in order [10(b)] referring to reasonable expenses, including legal expenses, of the second defendant in administering the estate of Mr Banning, including by BH advancing money to the estate for that purpose. I call this the reasonable expenses variation.
184 The balance of the application under the Minute did not concern variations to the plaintiff's freezing orders.
185 An amended minute of orders was prepared by the first and second defendants and, it appears, filed (the Amended Minute). In all respects material to me, the Amended Minute was the same as the Minute of 12 March 2009.
186 There was a hearing on the application before me on 18 and 20 March 2009. The focus of the hearing was parts of the application other than the ordinary living expenses variation and the reasonable expenses variation. I am satisfied that only a very small part of the hearing concerned those two matters. Indeed, my notes of the hearing indicate that no argument for making the variation orders was advanced at the hearing on 18 March 2009.
187 The orders following the hearing included that there be no orders as to most of the issues heard, and that the plaintiff was to have its costs of the hearing on 18 March 2009 and related costs, fixed ultimately at $2,150. The matters of the ordinary living expenses variation and the reasonable expenses variation were adjourned. I indicated at the conclusion of the hearing on 18 March 2009 that a renewed application for them might be made.
188 I am satisfied that the terms of the costs orders that I made following the hearing did not extend to that part of the Minute of 12 March 2009 and the Amended Minute to do with the ordinary living expenses variation and the reasonable expenses variation. That would not be consistent with the history that I have described. Accordingly, I reject the plaintiff's argument against the making of proposed costs order [17] that I had already determined the costs of that part of the application.
189 I note that no further hearing of that part of the application was held. However, subsequently, by the defendants' chamber summons dated 27 March 2009, applications for variations of the plaintiff's freezing orders were made that included variations in substantially the same terms as the ordinary living expenses variation and the reasonable expenses variation. Following a hearing on 16 April 2009, I made orders for the variation of the plaintiff's freezing orders, including orders in those respects. The costs of the application by chamber summons on 27 March 2009 were reserved.
190 I consider, based on that result, that the outcome of that part of the application by the Minute of 12 March 2009 (which became part of the Amended Minute) that related to the variation orders would, on full argument, clearly have been the making of those orders. I am therefore in a position to make orders for costs in respect of that part as if there had been such success. See Lai Qin (624 - 625) (McHugh J), to which I referred previously in connection with proposed costs order [11].
191 For the plaintiff, it was contended that I should not make proposed costs order [17] as the variations sought related to conduct expressly permitted by the plaintiff's freezing orders. However, I note the vigorous resistance to orders for conduct of the kind covered by the variations sought in the correspondence annexed to the affidavit of the second defendant sworn 16 March 2009 in support of the application for the variations to be made: see annexure 22. It is not apparent to me that this conduct was clearly permitted by the plaintiff's freezing orders.
192 As I have already indicated, I have considered whether $695 is the appropriate amount at which to fix the costs in proposed costs order [17]. While I can see an argument that a lesser sum might be more appropriate, I note again that there was no opposition to the quantification in the proposed costs order, and also note the relatively small amount involved. I would not alter that amount.
193 I would make proposed costs order [17].
194 Further, in view of the orders that I made following the hearing on 16 April 2009, I would make proposed costs order [18].
Defendants' summons dated 24 August 2009 (proposed costs order [19])
195 The application by this chamber summons was for two sets of orders. They were in relation to BH's collection of vintage motor vehicles, some of which were registered in the name of the late Mr Banning or were unregistered. The application was for orders to permit the sale of the collection.
196 One set of orders was as follows. Firstly, for the plaintiff or the Friggers, as the plaintiff's servants or agents, to remove a 'total ban' said to have been placed by them on the registration of the sale of BH's motor vehicles (chamber summons of 24 August 2009, proposed order [1(a)]). Secondly, for the same parties to provide written consent to the Sheriff pursuant to Civil Judgments Enforcement Act 2004 (WA) s 84 that the plaintiff admitted certain motor vehicles registered in the name of BH and Mr Banning's widow were the property of BH (proposed order [1(b)]). Thirdly, for the plaintiff or the Friggers, as the plaintiff's servants or agents, to provide the Sheriff with their written consent pursuant to Civil Judgments Enforcement Act s 84 that certain other motor vehicles, ones either unregistered or registered in the name of the late Mr Banning, were the property of BH (proposed order [3]).
197 The second set of orders sought was to add a new provision to the plaintiff's freezing orders to state that nothing in them was to be taken to prohibit the sale of any motor vehicles belonging to BH, or the use of some or all of the proceeds of any such sale to meet BH's commitments under the DOCA in respect of the first defendant. One of the purposes of the DOCA was to provide for the payment of the judgment debt to the plaintiff. See proposed order [2]. That proposed order was expressed as an 'alternative', in terms of the qualification '(For later determination as required.)'.
198 Following hearings of the application, as well as certain matters under other applications, before me on 7 October 2009 and on 2 December 2009, I made orders dismissing the application, save for that part with respect to the 'total ban', and I reserved costs, with liberty to apply. At the hearing on 2 December 2009, it had become common ground that there was no property seizure and sale order any longer on foot as was required for me to have jurisdiction to make the proposed orders [1(b)] and [3]. Thus, they fell away without my dealing with their merits. As to proposed order [2], it was accepted by the defendants that there was no need for it. Further, there was an issue remaining as to proposed order [1(a)]. That issue was whether or not there was a ban of the kind referred to in that proposed order deriving from something other than the plaintiff's freezing orders. The source of the ban might have been the former property seizure and sale orders, or, if not, a prohibition by a written law on the sale of a motor vehicle without a licence. In the latter case, an order like proposed order [1(a)] would have been of no assistance. See 2 December 2009 (ts 2303 - 2304, 2311).
199 In view of what appears on those pages, I cannot accept the submission for the defendants that my order adjourning consideration of proposed order [1(a)] was caused by any submissions of the then counsel for the plaintiff that he did not know that the application would be determined on 2 December 2009. However, I consider that nothing turns on that for present purposes.
200 A further hearing of the application, together with another application, took place on 19 March 2010. That hearing was treated either as a return to proposed order [2] as its terms allowed, or as the rehearing of matters in the chamber summons of 24 August 2009 related to proposed order [2] notwithstanding the orders made on 2 December 2009. I noted at the hearing that proposed order [2] had been framed as an 'alternative' and '(For later determination as required.)'. No objection was taken at the hearing on 19 March 2010 to the consideration of proposed order [2] in modified form. That form was modified to the extent that it contained an added provision permitting the sale by the second defendant of all or any motor vehicles belonging to the estate of the late Mr Banning and contained no provision with respect to use of the proceeds of any such sale.
201 Following the hearing on 19 March 2010, for the reasons I gave orally then, I made orders to broadly the same effect as the second set of orders sought by the chamber summons of 24 August 2009, modified as I have described, with costs reserved and otherwise adjourning the application for the variation of the freezing orders, with liberty to apply to all parties.
202 No order was made in terms of proposed order [1(a)] in the chamber summons of 24 August 2009. However, it was apparent from the supplementary affidavit of Cameron Eastwood sworn 15 March 2010 for the purposes of the hearing, annexing an email from a solicitor providing legal advice and assistance to the Department of Transport (annexure 1), that the Department had 'made notification on the register to prevent [BH's] vehicles being transferred' and had done so by reference to the plaintiff's freezing orders. That email indicated that the Department was reluctant to take action that would frustrate the plaintiff's freezing orders by acceding to the second defendant's request for a letter of release permitting the transfer of the registration of BH's motor vehicles. The email referred, among other things, to the possibility of applications under the plaintiff's freezing orders for the variation of them.
203 I consider that the orders I made on 19 March 2010 were ones that made proposed order [1(a)] unnecessary.
204 On this account, I consider that the defendants were largely successful in obtaining the relief that they sought by the application by chamber summons of 24 August 2009.
205 On Norilya, the usual order that would be made in respect of BH's costs would in my view be proposed costs order [19].
206 The plaintiff's opposition to the making of this proposed costs order was put on the same five bases as for its opposition to proposed costs order [8]. I consider that I have already dealt in that context with those bases sufficiently for the purposes of the present proposed costs order.
207 I would make proposed costs order [19].
Defendants' summons dated 24 August 2009 (proposed costs order [20])
208 The plaintiff's written and oral submissions appeared to rest its opposition to this proposed costs order on the same three bases as for its opposition to proposed costs order [9] above. I consider that I have already dealt in that context with those three bases sufficiently for the purposes of the present proposed costs order.
209 However, there is a further matter in respect of the present proposed costs order. It is the possibility that stoppage of all vehicle transfers was because of the late Mr Banning running a used car dealership without a licence, or because of the conduct of the sheriff under an expired property seizure and sales order. I have already referred to those matters in the previous section of these reasons. As I have indicated, I consider, based on the evidence before me at the hearing on 19 March 2010 and the orders that I made then, that these matters did not play a role in determining the outcome of the hearing.
210 Accordingly, I would make proposed costs order [20].
Other applications: applications by summons of 8 August 2008 (proposed costs order [22])
211 The application by chamber summons of 8 August 2008 was by the plaintiff for the appointment of Mrs Frigger, or alternatively Graeme Trevor Lean, as receiver of certain specified property pursuant to Civil Judgments Enforcement Act s 86(1)(b) or s 86(1)(e). The property listed included, but was not limited to, one share (50% shareholding) in BH. Certain other orders were sought, including ones for BH to take certain actions.
212 The application first came before Master Sanderson on 14 August 2008. The master adjourned the hearing to 26 August 2008 and reserved costs. The matter came before the master again on 26 August 2008, when he made certain orders, the terms of which are not apparent from the file in CIV 2265 of 2006, but which appear to have been orders adjourning the hearing.
213 The application then came before me on 11 November 2008, when I made programming orders for a hearing not before 20 November 2008, and reserved costs.
214 The matter came to a substantive hearing before me on 20 and 21 November 2008. At the conclusion of that hearing, I made orders in terms of the chamber summons as amended. The amendments were to appoint Mr Lean as receiver and delete the reference to Mrs Frigger; to delete all the property the subject of the applications save for the shareholding in BH; and to delete all references to BH taking actions that the chamber summons had previously provided for it to take.
215 I note that at the hearing on 20 November 2008 counsel for the plaintiff indicated that the plaintiff would not seek the appointment of Mrs Frigger but only that of Mr Lean. However, prior to that indication the defendants had filed affidavits and provided submissions including ones in opposition to Mrs Frigger's appointment. The affidavits were the affidavit of Mr Banning sworn 20 August 2008 and the affidavit of Mr Banning's widow sworn 17 November 2008. The submissions were those of the defendants dated 18 November 2008.
216 I further note that at the hearing on 20 November 2008 counsel for the plaintiff indicated that the plaintiff would not seek the appointment of Mr Lean to any property but the shareholdings described in the chamber summons. However, as with the appointment of Mrs Frigger, prior to that indication the defendants' affidavits and submissions referred to in the previous paragraph had addressed that other property.
217 Finally, I note that at the hearings on 20 and 21 November 2008 the contest was over whether to appoint a receiver with his responsibilities as court appointed receiver or leave the second defendant, with his responsibilities as an executor, in control of the relevant assets; and whether to have the receivership extend beyond the shareholding in BH.
218 In my view, the plaintiff was successful as to the appointment of the receiver; but this was an appointment only pressed in respect of Mr Lean. The plaintiff was also only successful as to this appointment for a single asset in the list of shareholdings, the share in BH, and its application was only ultimately pressed for a limited subset of the assets for which, under the chamber summons of 8 August 2008, it had sought the appointment.
219 Thus, in my view the plaintiff did not achieve success on a number of discrete and severable issues that added to the costs of the chamber summons in a significant and readily discernible way. See Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) [7] (Martin CJ, Steytler P & McLure JA).
220 In arriving at how the power to order costs should be exercised in relation to proposed costs order [22], I consider that the power should be exercised broadly and as a matter of impression, without an attempt at mathematical precision. See the authorities in that regard listed in Civil Procedure in Western Australia [66.1.12].
221 On that basis, I would order costs for the plaintiff in the fraction in proposed costs order [22].
222 Counsel for the plaintiff put its opposition to proposed costs order [22] on the basis that the plaintiff's application was successful. For the reasons just given, I consider that this argument does not sufficiently account for the outcome of the application.
223 Thus, I would make proposed costs order [22].
Other applications: costs of the defendants' Minute (proposed costs order [23])
224 These costs may also be described as the costs of the present application.
225 I consider that the defendants have been successful in respect of all the proposed costs orders or other outcomes that they sought in this application, save in respect of, and to the extents previously indicated for, proposed costs order [1]; the order for the costs of a transcript of the trial; the reinstatement of my May 2009 costs orders [8(a)] and [8(e)]; proposed costs order [6]; the costs in the Magistrates Court; proposed costs order [8]; and proposed costs order [16]. However, I note that the defendants did not press proposed costs order [16]. Similarly, the plaintiff did not press any opposition to proposed costs orders [2] to [5] or to my May 2009 costs orders [7(a)] and [8(f)] being reinstated.
226 I consider that the approach applicable to proposed costs order [23] is that applicable to the award of costs where a party has not achieved success on a number of discrete and severable issues that added to the costs of the application in a significant and readily discernible way. I have previously referred to that approach. On that approach, taking account of the extent of the success of the plaintiff in the respects listed, relative to the success of the defendants in obtaining the orders or other outcomes that they contended for, I would order that the defendants be paid 90% of their costs in the present application. That is, the defendants be awarded that percentage of their costs that they seek under proposed costs order [23].
227 However, this is subject to a matter that I will raise in relation to the next proposed costs order, proposed costs order [24].
Costs relating to the hearings on 15 August 2014 and 19 September 2014 (proposed costs order [24])
228 The hearing on 15 August 2014 was one at which only the legal representatives for the defendants appeared. It resulted in the making of programming orders for the hearings of the present application. Those hearings commenced on 19 September 2014, as I have previously indicated. The programming orders provided for the filing and service of written submissions and affidavits by all parties and that costs should be reserved.
229 As I indicated at the outset of these reasons, extensive written submissions for the plaintiff and for the defendants, as well as detailed affidavits, were filed and served.
230 I consider that the costs of and incidental to the hearings on 15 August 2014 and 19 September 2014 might appropriately be dealt with as part of the costs of seeking the orders and other outcomes under the defendants' Minute. However, in my view those hearings indicated clearly that costs under item 10 of the scale and proposed costs order [23] would be inadequate by reason of the unusual difficulty and complexity of the present application. In these circumstances, a special costs order under Legal Profession Act s 280 would be appropriate. On making such orders, see the section of these reasons entitled 'No special costs orders from my May 2009 costs orders'. At the same time, no special costs order has been applied for here.
231 As an alternative to the making of such an order, I would make proposed costs order [24].
Appendix 1: my May 2009 costs orders
UPON HEARING Mr C Stokes of counsel for the Plaintiff and Mr S Forbes of counsel for the Defendants IT IS ORDERED THAT:
1. The Defendants pay 90% of the Plaintiff's costs of the action to be taxed if not agreed.
2. There be a certificate for the transcript of the trial.
3. The Plaintiff be and is awarded the reserved costs of the Defendant's application of 17 January 2006 to join Mark Edward Penrose as Third Defendant to the proceedings (which application was discontinued on 31 July 2006 by the Defendants).
4. There be no order as to costs of the directions hearings on 3 May 2007 and 14 May 2007.
5. There be no order as to the costs of the adjourned first day of trial on 7 May 2007 except in relation to costs in relation to the return of subpoenas on 7 May 2007 which costs shall be costs in the cause.
6. The Plaintiff be and is awarded the reserved costs of the following:
(a) Defendant's application to amend defence on 15 October 2007 which application was discontinued by the Defendants;
- (b) The Plaintiff's application for freezing orders on 8 January 2008 and 11 January 2008.
(a) Statement of claim;
(b) Getting up;
(c) Solicitor attending trial;
- (d) Solicitor's attendance at the last day of trial, including Plaintiff's closing submissions.
(a) Defendant's security for costs application heard 26 April 2007;
(b) Counsel fee on brief and first day trial on 2 November 2007;
(c) Counsel fee on second and subsequent days of trial;
(d) Counsel fee for the last day of trial including closing submissions;
(e) The Plaintiff's application for freezing orders on 8 and 11 January 2008;
- (f) Directions hearing on 29 October 2007.
10. The Plaintiffs have liberty to apply with respect to the costs the subject of the application in relation to the costs of the Magistrates Court proceedings referred to in Order 9.
11. There be no orders as to the costs of the hearing on 6 May 2009.
Appendix 2: the defendants' Minute
Trial costs
1. The Defendants pay 40% of the Plaintiff's costs of the action to be taxed if not agreed;
2. The Plaintiff be and is awarded the reserved costs of the Defendants' application of 17 January 2006 to join Mark Edward Penrose as Third Defendant to the proceedings, which application was discontinued on 31 July 2006 by the Defendants;
3. There be no order as to the costs of the directions hearings on 3 May 2007 and 14 May 2007;
4. There be no order as to the costs of the adjourned first day of trial on 7 May 2007 except in relation to costs in relation to the return of subpoenas on 7 May 2007 which costs shall be costs in the cause;
5. The Plaintiff be and is awarded the reserved costs of the following:
a. Defendants' application to amend defence on 15 October 2007 which application was discontinued by the Defendants;
b. the Plaintiff's application for freezing orders on 8 January 2008 and 11 January 2008.
7. The Plaintiff pay the Defendants' costs of and incidental to the direction hearings on 24 August 2009 and 21 October 2009 and the taxation on 1 September 2009.
Defendants' application by Chamber Summons dated 10 November 2008
8. The Plaintiff pay all the costs and expenses of the summons incurred by Banning Holdings Pty Ltd except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exception Banning Holdings Pty Ltd is completely indemnified by the Plaintiff in respect of its costs of making the application to be taxed if not agreed.
9. The Plaintiff pay the first and second defendants costs of the summons to be fixed in accordance with practice direction 4.7.1 in the sum of $1,195.
Defendants' application by Chamber Summons dated 19 December 2008
10. The Plaintiff pay all the costs and expenses of the summons incurred by Banning Holdings Pty Ltd except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exception Banning Holdings Pty Ltd is completely indemnified by the Plaintiff in respect of its costs of making the application to be taxed if not agreed.
11. The Plaintiff pay the First and Second Defendants costs of the summons to be fixed in accordance with practice direction 4.7.1 in the sum of $1,195.
Defendants' application by Chamber Summons dated 27 March 2009 (as amended in April 2009)
12. The Plaintiff pay all the costs and expenses of the summons incurred by Banning Holdings Pty Ltd except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exception Banning Holdings Pty Ltd is completely indemnified by the Plaintiff in respect of its costs of making the application to be taxed if not agreed.
13. The Plaintiff pay the First and Second Defendants' costs of the summons, including, appearances on 16, 17, & 20 April 2009 such costs to include an uplift in Item 10 of the scale contained in the Legal Practitioners (Supreme Court) (Contentious Business) Report 2008 by increasing the limit in Item 10(a) and (b) to $22,000 to allow for the additional work completed to be taxed if not agreed.
Plaintiff's application by Chamber Summons dated 27 August 2009
14. The Plaintiff pay all the costs and expenses of the summons incurred by Banning Holdings Pty Ltd except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exception Banning Holdings Pty Ltd is completely indemnified by the Plaintiff in respect of its costs of opposing the application.
15. The Plaintiff pay the costs of the First and Second Defendants of the summons to be taxed, such costs to include an uplift in Item 10 of the scale contained in the Legal Practitioners (Supreme Court) (Contentious Business) Report 2008 by increasing the limit in Item 10(a) and (b) to $21,000 to allow for the urgency of the summons, the increased hearing time and the attendance of the Defendants' solicitor at the hearing to instruct Counsel.
16. The receiver's costs of his attendance at Court on the hearing of this application, including any costs incurred by his solicitors and counsel be disallowed as costs of his receivership and/or be borne by him personally.
The Defendants' minute of orders 12 March 2009
17. The Plaintiff pay the First and Second Defendants' costs of the application, including, appearance on 20 March 2009 to be fixed in accordance with practice direction 4.7.1 in the sum of $695.
18. The application be otherwise dismissed.
Defendants' application by Chamber Summons dated 24 August 2009
19. The Plaintiff pay all the costs and expenses of the summons incurred by Banning Holdings Pty Ltd except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exception Banning Holdings Pty Ltd is completely indemnified by the Plaintiff in respect of its costs of opposing the application to be taxed if not agreed.
20. The Plaintiff pay the costs of the summons of the First and Second Defendants to be taxed if not agreed.
The Sheriff's application by Chamber Summons dated 10 August 2009
21. No Orders are now sought (the Summons was dismissed by Justice Murphy on 29 September 2009).
Other applications
22. The First and Second Defendants pay one third of the Plaintiff's costs of the chamber summons dated 8 August 2008 to be taxed if not agreed.
23. The Plaintiff pay the First and Second Defendants costs of seeking the orders contained in this minute to be taxed if not agreed pursuant to Item 10 of the scale contained in the Legal Practitioners (Supreme Court) (Contentious Business) Report 2010.
Costs relating to hearings on 15 August 2014 and 19 September 2014
24. The Plaintiff pay the costs of and incidental to the hearings on 15 August 2014 and 19 September 2014 to be taxed if not agreed.
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