Dakin Farms Pty Ltd v Elite Grains Pty Ltd

Dakin Farms Pty Ltd (the plaintiff) brought proceedings against Elite Grains Pty Ltd (the defendant) in the Supreme Court of Western Australia. The plaintiff sought an order for indemnity costs and special costs orders removing the scale limits. The defendant applied to have the plaintiff's claim dismissed and sought orders for indemnity costs, special costs orders, and the removal of scale limits. The court was required to determine whether the plaintiff was entitled to an order for indemnity costs, special costs orders, or the removal of scale limits. The court considered whether there was a binding arbitration agreement between the parties, whether the plaintiff's conduct was unreasonable, and whether the defendant's application for indemnity costs was misconceived.

The court held that there was no binding arbitration agreement between the parties. The court also held that the plaintiff's conduct was not unreasonable, and that the defendant's application for indemnity costs was not misconceived. The court noted that the hourly rates to apply in assessing costs should not be in excess of the hourly rates allowed in the Scale merely because a party's solicitor or counsel have charged at a higher rate. The court also held that there was no evidence provided by the plaintiffs as to the particular expertise or experience of Ms Pope, Mr Abbott (counsel) or any other person who may have performed work for the plaintiffs. There was also no evidence led as to why the case was of such 'unusual complexity or importance' that the case 'warrants the special expertise of the practitioner involved and warrants an increase in the hourly rate'. The court declined to make an order increasing the maximum hourly rates.

The court held that the defendant was entitled to indemnity costs and special costs orders removing the scale limits. The court held that the plaintiff's conduct was unreasonable and that the defendant's application for indemnity costs was not misconceived. The court held that the plaintiff was liable to pay the defendant's costs of the proceeding on an indemnity basis, and that the scale limits were removed.