Custombuilt Homes Pty Ltd v Dowell

[2004] WADC 254

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   CUSTOMBUILT HOMES PTY LTD -v- DOWELL & ANOR [2004] WADC 254

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   28 OCTOBER 2004

DELIVERED          :   17 DECEMBER 2004

FILE NO/S:   CIV 1857 of 2001

BETWEEN:   CUSTOMBUILT HOMES PTY LTD (ACN 009 393 051)

Plaintiff

AND

ASHLEY KEVIN DOWELL
First Defendant

SHOANA LEANNE DOWELL
Second Defendant

Catchwords:

Practice - Western Australia - Objection to taxation - Whether costs of revising statement of claim can be claimed under scale item 6(b)

Legislation:

Nil

Result:

Objection dimissed

Representation:

Counsel:

Plaintiff:     Ms Htin

First Defendant              :     Mr Biddulph

Second Defendant         :     Mr Biddulph

Solicitors:

Plaintiff:     Bennett & Co

First Defendant              :     Biddulph & Turley

Second Defendant         :     Biddulph & Turley

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. DEPUTY REGISTRAR HEWITT:  This matter arises from the plaintiff's objection to the taxation of the defendant's bill of costs which took place before me on 28 October 2004.  The objection is as follows:

   "Item 2:There has been an error in principle in allowing a claim for the Defence under item 6(b) of the Scale and a separate claim for the Amended Defence under item 6(b) of the Scale (see Item Number 3 of the Amended Bill of Costs).  Item 6(b) of the Scale does not make a separate allowance for amendments to pleadings.  The taxing officer should have considered the amended Defence as one pleading under item 6(b) of the Scale.

   Item 3:There has been an error in principle in allowing a claim for the Defence under item 6(b) of the Scale and a separate claim for the Amended Defence under item 6(b) of the Scale.  Item 6(b) of the Scale does not make a separate allowance for amendments to pleadings. The taxing officer should have considered the amended Defence as one pleading under item 6(b) of the Scale."

2. I am at a loss to understand the basis of the objection which has been brought.

3. By minute of consent orders on 17 October 2002 the parties agreed that the plaintiff be permitted to amend the statement of claim in terms of a minute of proposed amended statement of claim before the court.  It is further agreed that the plaintiff pay the defendant's costs of the amendments including any costs thrown away by reason of the amendments in any event.

4. The bill which was presented for taxation by the defendant contained a claim for the defence in the form originally drafted of $1,350 which was allowed at $1,200 and a further claim for amending the defence in response to the plaintiff's amended statement of claim which was claimed at and allowed at $540. The objection seems to suggest that there is an error in principle in allowing for two claims under item 6(b).

5. The second of the claims under item 6(b) related to work which I determined was reasonably undertaken in revising the defence in the face of the amended statement of claim presented by the plaintiff.

6. I can see little difference if the two figures were amalgamated to a single figure as the objections seems to suggest that they should have been, or alternatively to present a separate claim for the work required to be undertaken to revise the defence in the manner necessary to respond to the amended statement of claim.

7. The defendant was entitled to the costs however one may view it, but I am unable to see any error in principle in considering a claim for the costs thrown away by reason of the need to amend the defence as a separate claim under item 6(b).  At the end of the day the assessment is for the time reasonably taken to prepare the amendment in the face of the amended statement of claim. My allowance of two hours has not been challenged.  If I am wrong in my view of item 6(b) of the scale, and the plaintiff is correct that only a single claim can be accommodated, I would nonetheless allow the additional amount of $540 as costs thrown away and payable by the plaintiff to the defendant pursuant to the consent order to which I have earlier referred.

8. From this it can be seen that even if I agreed that procedurally it was not appropriate to allow separate claims under item 6(b), nonetheless I am satisfied that the work represented by the claim was properly and reasonably undertaken by the defendant and claimable against the plaintiff pursuant to the consent order.  However, in my view separate claims are allowable under item 6(b) in circumstances such as these where it was necessary to draw a fresh defence to meet the varied claim presented by the plaintiff.

9. For these reasons the objection has not been allowed and I have signed my certificate in the amount of $45,177.22.