Edward Brewer Homes Pty Ltd v Home Builders Australia Pty Ltd
[2010] WASC 257 (S)
•23 SEPTEMBER 2010
EDWARD BREWER HOMES PTY LTD -v- HOME BUILDERS AUSTRALIA PTY LTD [2010] WASC 257 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 257 (S) | |
| Case No: | CIV:1290/2010 | 29 JULY 2010, ON THE PAPERS | |
| Coram: | LE MIERE J | 23/09/10 | |
| 16/11/10 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Defendants to pay plaintiffs' costs of the plaintiffs' application Costs of the defendants' application be costs in the cause | ||
| B | |||
| PDF Version |
| Parties: | EDWARD BREWER HOMES PTY LTD DAVID EDWARD BREWER HOME BUILDERS AUSTRALIA PTY LTD ANDREAS DAVID HOLMES NICOLE MARGARITA HERSTIK |
Catchwords: | Practice and procedure Costs Turns on own facts |
Legislation: | Nil |
Case References: | Re Pomeroy & Tanner [1897] Ch D 284 Santos Ltd v Delhi Petroleum Pty Ltd [2005] SASC 242 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 16 NOVEMBER 2010 FILE NO/S : CIV 1290 of 2010 BETWEEN : EDWARD BREWER HOMES PTY LTD
- First Plaintiff
DAVID EDWARD BREWER
Second Plaintiff
AND
HOME BUILDERS AUSTRALIA PTY LTD
First Defendant
ANDREAS DAVID HOLMES
Second Defendant
NICOLE MARGARITA HERSTIK
Third Defendant
Catchwords:
Practice and procedure - Costs - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Defendants to pay plaintiffs' costs of the plaintiffs' application
Costs of the defendants' application be costs in the cause
Category: B
Representation:
Counsel:
First Plaintiff : Mr B Goldsmith
Second Plaintiff : Mr B Goldsmith
First Defendant : Ms P Hay
Second Defendant : Ms P Hay
Third Defendant : Ms P Hay
Solicitors:
First Plaintiff : Goldsmiths Lawyers
Second Plaintiff : Goldsmiths Lawyers
First Defendant : Michael Sing Lawyers
Second Defendant : Michael Sing Lawyers
Third Defendant : Michael Sing Lawyers
Case(s) referred to in judgment(s):
Re Pomeroy & Tanner [1897] Ch D 284
Santos Ltd v Delhi Petroleum Pty Ltd [2005] SASC 242
(Page 3)
1 LE MIERE J: On 28 July 2010 the plaintiffs filed a chamber summons for an order for further and better particulars of the defence. The application came on for hearing on 29 July 2010. I ordered that the defendant serve further and better particulars of the defence pursuant to the plaintiff's request dated 7 June 2010. I further ordered that each party have leave to make written submissions on the issue of costs.
2 On 30 June 2010 the defendants applied by chamber summons for summary judgment against the plaintiffs or alternatively that the plaintiffs' statement of claim be struck out. That application came on for hearing on 29 July 2010. At the hearing I declined to order summary judgment. In their application to strike out the statement of claim the defendants submitted, amongst other things, that the first plaintiff had failed to plead that it is an excluded corporation under s 9 of the Defamation Act 2005 (WA) and therefore the statement of claim disclosed no reasonable cause of action of the first plaintiff. The plaintiffs submitted that s 9 of the Act is a defence and it is therefore not required to plead that the first plaintiff is an excluded corporation. I granted the parties leave to file and serve further written submissions in relation to that point. Having considered the parties' written submissions I delivered written reasons for judgment on 23 September 2010. I found that the statement of claim failed to disclose a reasonable cause of action of the first plaintiff because the first plaintiff had failed to plead that it was an excluded corporation. I also found that [19E] of the statement of claim was embarrassing because it failed to inform the defendants in its terms whether the plaintiffs claimed damages for defamation alone or damages for contravention of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (WA) and if it is the latter, then the facts and matters constituting the nexus between the loss and damage and the conduct complained of. I otherwise did not uphold the grounds relied upon by the defendants in seeking summary judgment or that the statement of claim be struck out. I subsequently granted the plaintiffs leave to amend the statement of claim and granted each party leave to make written submissions on the issue of costs.
3 These are my reasons for decision in relation to the costs of the plaintiffs' application for further and better particulars of the defence and the defendants' application for summary judgment or to strike out the statement of claim.
(Page 4)
Plaintiffs' application for further and better particulars
4 The general rule is that costs follow the event. The plaintiffs were successful. There is no reason why they should not have the costs of their application.
5 The plaintiffs seek an order that I fix the costs and order the costs to be paid forthwith. The plaintiffs have provided a schedule of time spent in relation to the plaintiffs' summons and claim 'professional costs' of $8,235.70 and disbursements of $270 for the court fee on filing of the chamber summons, $169.25, being half of the fees paid for the video link for the hearing on 29 July 2010 and $2,327.16, being half of the costs of the defendants' Perth agents in respect of the plaintiffs' application for further and better particulars and the defendants' application for summary judgment or to strike out the statement of claim. The defendants' Perth agents are the legal firm of Talbot Olivier Lawyers. No further detail is provided of their fees.
6 Practice direction 4.7.1 provides that, as a general rule, where an order for costs is to be made against a party in interlocutory proceedings, the costs will be fixed and ordered to be paid forthwith or by a particular date. The practice direction further provides that judges can be expected, in the usual run of routine matters, to fix the costs payable by reference to the schedule attached to the practice direction. The schedule has been prepared by reference to the applicable determination of the Legal Costs Committee. The figures in the schedule are calculated by reference to the time required in a typical, or median, instance. The practice direction provides that the court will fix costs at a lower sum in a simple matter, or adjust the amount paid (or order costs to be taxed) for unusually heavy matters. The practice direction further provides that the judge fixing the costs will not be engaging in a taxation and in most cases it will be necessary for counsel to make no more than the briefest submissions as to whether there should or should not be an order for fixed costs and the amount of the costs. The practice direction does not, and does not purport, to fetter in any way the discretion to be exercised in awarding costs.
7 Schedule item 2.1 specifies an amount of $375 for the chamber summons and O 59 r 9 memorandum. Item 2.4 applies to a special appointment before a judge in chambers. That item specifies an amount of $1,650 for preparing and lodging submissions and authorities, preparation, attending on the hearing and reporting. A further amount of $500 is allowed for each extra hour of hearing time.
(Page 5)
8 The plaintiffs' application for further and better particulars was a simple matter. It was not an unusually heavy matter. If I was fixing the costs I would fix them, in accordance with items 2.1 and 2.4 of the schedule attached to practice direction 4.7.1, in the amount of no more than $2,025. The plaintiffs seek more than four times that amount for 'professional costs' and a further $2,327.16 for 'Perth agents fees'. The plaintiffs may have incurred greater costs than might be expected to be incurred in an application of this sort because the plaintiffs have retained New South Wales solicitors to represent them in proceedings they have commenced in Western Australia and on the hearing of the application their counsel appeared by video link. So far as I am aware the only evidence before me concerning the location of the parties is that the first plaintiff is a Perth house builder. There is no evidence concerning the reasonableness of the plaintiffs retaining New South Wales solicitors. In the circumstances, I will order that the defendants pay the plaintiffs' costs of the plaintiffs' application for further and better particulars of the defence. The plaintiffs will be entitled to have their costs taxed and paid at once.
9 There is a further reason for not fixing the costs to be paid by the defendants to the plaintiffs. As I have said, the costs claimed include the professional costs of the plaintiffs New South Wales solicitors and disbursements in the form of 'Perth agent fees'. The plaintiff is entitled to recover costs in respect of the costs of its New South Wales solicitors provided that those solicitors are admitted to practice in Western Australia and therefore entitled to claim their professional costs for work done in relation to these proceedings.
10 However, there may be an issue whether the costs of the plaintiffs' Perth agents may be recovered as a disbursement; see Re Pomeroy & Tanner [1897] Ch D 284 referred to by Bleby J in Santos Ltd v Delhi Petroleum Pty Ltd [2005] SASC 242. Whether the costs of the plaintiffs' Perth agents may be recovered as disbursements was not a matter argued before me and accordingly I will say nothing more about it. That is a matter which might arise for determination on a taxation of costs.
Defendants' application for summary judgment or to strike out the statement of claim
11 The defendants failed to obtain summary judgment. They effectively succeeded in striking out the statement of claim against the first plaintiff but not the second plaintiff.
(Page 6)
12 The plaintiffs submit that the defendants succeeded, in substance, in one respect only, in relation to the excluded corporation issue and that it is possible that had the defendants not made their application for summary judgment or for an order that the entire statement of claim be struck out, and merely raised that issue, then that issue may have been attended to, as sought by the defendants, without necessity for a summons in a contested hearing. The plaintiffs further submitted that clarification of the damages sought in [19E] of the statement of claim could have been provided by letter and that that opportunity was lost as a result of the summons filed by the defendants. The plaintiffs submit that the defendants should pay 90% of the plaintiffs' costs of the defendants' summons.
13 The defendants submit that whilst they did not succeed in obtaining summary judgment, or in striking out the whole of the plaintiffs' statement of claim, the court concluded that the statement of claim failed to disclose a reasonable cause of action by the first plaintiff.
14 In substance the defendants succeeded in striking out the statement of claim of the first plaintiff. The defendants failed on a number of issues raised in support of their application for summary judgment and to strike out the statement of claim of the second plaintiff. On the other hand, the principal issue argued, and that which occupied most time, was the issue whether the first plaintiff was required to plead that it was an excluded corporation and hence whether, in the absence of such a plea, the statement of claim failed to disclose a reasonable cause of action of the first plaintiff. The defendant succeeded in relation to that issue. Having regard to all matters the appropriate order is that each parties' costs be costs in the cause.
15 It is not appropriate that I fix the costs of the plaintiffs' application. Determining the quantum of the plaintiffs' costs raises questions concerning the necessity, or reasonableness, of retaining New South Wales solicitors and whether the costs of the Perth agents may be recovered as a disbursement.
Costs of the written submissions on costs
16 Neither party succeeded in obtaining the orders they sought in relation to the costs of each application. I will not make any order in relation to the costs of the submissions in relation to costs of the two applications.
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