Dalecoast Pty Ltd v Guardian ; International Pty Ltd & Ors

[2001] WASC 199 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	DALECOAST PTY LTD -v- GUARDIAN INTERNATIONAL PTY LTD & ORS [2001] WASC 199 (S)

CORAM	: MCKECHNIE J
HEARD	:  12-16 FEBRUARY, 14-18 MAY 2001 & 11 SEPTEMBER 2003
DELIVERED	: 1 AUGUST 2001
SUPPLEMENTARY
DECISION	: 7 MAY 2004
FILE NO/S	:  CIV 2453 of 1996
BETWEEN	: DALECOAST PTY LTD

Plaintiff

AND

GUARDIAN INTERNATIONAL PTY LTD

First Defendant

GUARDIAN PROTECTIVE COATINGS PTY LTD

Second Defendant

ANTHONY MAURICE MONISSE
GRANT DESMOND BOYCE
GARY JOHN DWYER
ANTHONY PETER WARREN

Third Defendants

ROBERT BRUCE ARUNDEL SMITH
ALAN FREDERICK BAMFORD
Fourth Defendants

Catchwords:

Costs - Whether special order should be made - No new principles

Legislation:

Nil

Result:

Special costs order made

Category: B

Representation:

Counsel:

Plaintiff	:	Mr J C Giles
First Defendant	:	Mr S G Leslie
Second Defendant	:	Mr S G Leslie
Third Defendants	:	Mr S G Leslie
Fourth Defendants	:	Mr P G Clifford

Solicitors:

Plaintiff	:	Solomon Brothers
First Defendant	:	Wilson & Atkinson
Second Defendant	:	Wilson & Atkinson
Third Defendants	:	Wilson & Atkinson
Fourth Defendants	:	Tottle Christensen

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

City of Rockingham v Curley [2000] WASCA 202(S)
Dalecoast Pty Ltd v Guardian International Pty Ltd & Ors [2001] WASC 199
Verdell Pty Ltd v F&G Nominees Pty Ltd [2002] WASC 58(S2)

[2001] WASC 199 (S)

Case(s) also cited:

Henville v Walker (2001) 206 CLR 459

[2001] WASC 199 (S)

MCKECHNIE J

1. MCKECHNIE J: In the action cited as Dalecoast Pty Ltd v Guardian International Pty Ltd & Ors [2001] WASC 199 the second and third defendants were successful. The plaintiff's claims against them were dismissed. A subsequent appeal by the plaintiff against these defendants was unsuccessful. The second and third defendants now apply for an order increasing the maximum scale fee under Item 13 of the Scale for getting up for trial. The plaintiff opposes this application.

2              The principles governing such applications are not in question. They

were gathered together by Wheeler J in Verdell Pty Ltd v F&G Nominees
Pty Ltd [2002] WASC 58(S2).

3              The defendants' solicitor has filed an affidavit in support of the

application. He has annexed a preliminary draft schedule showing the work to be considerably greater than 100 hours or $27,000 allowed under the scale. I have taken the draft bill into account although I have not spent much time on the detail. I share concerns expressed by others in different cases as to the general utility of this procedure.

4              I note that the discretion to make an order must be triggered if the

case is of "unusual complexity": City of Rockingham v Curley [2000] WASCA 202(S). My impression gained from the pleadings and reinforced by the trial is that this case satisfied the description of being of unusual complexity. Although the plaintiff in its submissions describes the case as straightforward with narrow issues and limited evidence so far as the defendants are concerned, I am unable to agree. The pleaded case against the defendants was subject to many changes and in the end this would have required a great deal of work. The plaintiff raised significant legal issues as to the liability of the third defendants in particular under the Trade Practices Act. There were different causes of action pleaded against the parties all, of which required consideration by the defendants' solicitors both as to matter of law and as to matters of fact. The plaintiff advanced its various claims in a way which was complex and would have required an unusual expenditure of effort to meet. From an examination of the pleadings, a review of the issues that were raised before and during trial, and noting the draft bill of costs, I conclude that this is an appropriate case where the discretion having been enlivened by a finding of unusual complexity, an order should be made extending the limit under Item 13 of the Scale.