Edwards MAC Scovell v Traianou
[2020] WASC 280
•30 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: EDWARDS MAC SCOVELL -v- TRAIANOU [2020] WASC 280
CORAM: REGISTRAR WHITBY
HEARD: ON THE PAPERS
DELIVERED : 30 JULY 2020
FILE NO/S: LPA 36 of 2019
BETWEEN: EDWARDS MAC SCOVELL
Applicant
AND
ALLAN TRAIANOU
Respondent
Catchwords:
Review of taxation - Order 66 r 53, r54 RSC - Error in Principle - Turns on own facts
Legislation:
Legal Profession Act 2008 (WA)
Legal Profession (District and Supreme Courts) (Contentious Business) Scale 2018
Rules of the Supreme Court 1971 (WA)
Result:
Respondent's objections dismissed
Representation:
Counsel:
| Applicant | : | No appearance |
| Respondent | : | No appearance |
Solicitors:
| Applicant | : | Edwards Mac Scovell Legal |
| Respondent | : | In Person |
Case(s) referred to in decision(s):
Lobban v Lawson Legal [2014] WASC 243
Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155
Soia v Bennett [2014] WASCA 204
REGISTRAR WHITBY:
Background
The applicant is a law firm. The respondent retained the applicant to act on behalf of him and his daughter, Ms Lisa Traianou, in relation to an offer and acceptance entered into by Ms Traianou to purchase 4 Shallow Street Spearwood, Western Australia (property) from Ladybug Holdings Pty Ltd (Ladybug) (Contract).
The Contract was due to settle in November 2017.
Ladybug executed the Contract by its sole director, Anne Best. Ms Best was, at all relevant times, engaged in proceedings in the Family Court of Western Australia with her former husband in relation to their separation. Ms Best's former husband asserted that Ms Best had been restrained by the Family Court from dealing with the property and therefore, the Contract could not be enforced.
The applicant relies upon the affidavit of Bonnie Adele Scovell sworn on 31 October 2020 (Scovell Affidavit). The Scovell Affidavit sets out the background to the retainer and the nature of the work completed by the applicant pursuant to the retainer.
The applicant rendered invoices to the respondent for work performed for the period 20 April 2018 to 16 July 2018. The rates charged by the applicant for each practitioner did not exceed the amounts provided for in the Legal Profession (District and Supreme Courts) (Contentious Business) Scale 2018 (the Scale).
On 21 August 2019, the applicant filed an application for assessment of costs under the Legal Profession Act 2008 (WA) (LPA).
On 12 March 2020, the applicant filed an Amended Bill of Costs for Assessment (Bill of Costs) in the total amount of $8,500.
On 10 June 2020, I assessed the Bill of Costs and allowed the global amount of $6,500. At the conclusion of the assessment I made orders that, inter alia, the applicant and the respondent have until 4.00 pm on 17 June 2020 to file and serve any objections in relation to the assessment of the Bill of Costs (such objections to identify the error/s in principle of the assessment). On 17 June 2020, I granted the respondent an extension of time to file any objections to the assessment of the Bill of Costs to 18 June 2020.
On 18 June 2020, the respondent filed written objections to the amount allowed at the assessment.
General principles on a review of taxation
An application for review of a costs assessment is made in accordance with the Rules of the Supreme Court 1971 (the RSC).[1] Order 66 r 53 and r 54 RSC provide:
[1] Lobban v Lawson Legal [2014] WASC 243 [12] ‑ [13].
53.Party dissatisfied with taxation may object and apply for review
(1)A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the taxing officer ‑
(a)deliver to the other party interested in the allowance or disallowance and carry in before the taxing officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections; and
(b)thereupon apply to the taxing officer to review the taxation in respect of those items or parts.
(2)Pending the consideration and determination of the objection, the taxing officer may if he thinks fit issue a certificate of taxation for or on account of the remainder or of part of the bill of costs. Any further certificate which may be necessary shall be issued by the taxing officer after his decision upon the objections.
54.Review of taxation by taxing officer
(1)Upon an application under rule 53 to review the taxation, the taxing officer shall reconsider and review his taxation in relation to the objections, and he may, if he thinks fit, receive further evidence in respect of the objections.
(2)If so required by a party, the taxing officer shall state in his certificate of taxation or by reference to the objection, the ground and reason of his decision on the objection, and any special facts or circumstances relating to his decision.
(3)The taxing officer may tax the costs of the objections and add them to or deduct them from, any sum payable by or to a party to the taxation.
In Soia v Bennett [2014] WASCA 204 [27] ‑ [28], Mitchell J said that:
27 The requirements of r 53(1) I have described above are more than merely formal requirements. An objection under r 53(1) defines the scope of the taxing officer's review under r 54 and the judge's powers under r 55. The specification of the items objected to and the ground of objection, in a way that identifies the alleged error of principle, also facilitates the subsequent steps in the objection process. If the written objection clearly identifies the error of principle, then the taxing officer's reasons under r 54(2) can indicate whether the taxing officer has applied that principle. If the taxing officer accepts that the principle has been applied as alleged, the task of the judge reviewing under r 55 may simply be to determine whether the application of that principle was actually erroneous.
28 ... Because upon a review of a taxation a judge may rectify only errors of principle, it is particularly important that the party seeking review should require the taxing officer to state the ground and reasons of his decision on each objection and equally important that the taxing officer should give clear but concise reasons. This will only be achievable if the objection under r 53 specifies the items or parts of items objected to and the grounds and reasons for the objections, cast in terms of an alleged error of principle (footnotes omitted).
The meaning of 'error in principle' in O 66 r 53 was considered in Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155. Murphy JA, with whom McLure P and Newnes JA agreed, held:
75Order 66 r 53 and O 66 r 55 refer to an 'error in principle'. In this context, errors in principle have been contrasted with questions of mere quantum. In Re Catlin [1854] 18 Beav 508 [52 ER 200], Sir John Romilly said:
The petition is to review the taxation made by the Taxing Master of a bill of costs delivered by Mr Catlin, and complaining of the disallowance of various items. It is admitted, on both sides, that this Court can only be called upon to determine on the propriety of allowing or disallowing items which involve some principle, and not where a question only of quantum arises (Alsop v Lord Oxford 1 Myl & K 564).
76Nevertheless, errors in principle may be made both in determining whether an item should be allowed and in determining how much should be allowed: Schweppes Ltd v Archer (1934) 34 SR (NSW) 178, 183; Australian Coal & Shale Employees' Federation v Commonwealth (628).
77 An error in principle may be inferred from a decision of the taxing officer if the result is such that the discretion appears not to have been exercised at all, or where it has been exercised in a manner that is manifestly wrong: Australian Coal & Shale Employees' Federation v Commonwealth (628 - 629).
78 In Mossensons (a firm) v Coastline Associates, Ipp J (Pidgeon J agreeing) observed (9 ‑ 10):
The point is that there must be an error in principle before a judge will carry out a review under O 66 r 55. Although it is possible for an error in principle to be made in regard to the quantum allowed in respect of a particular item, that is generally regarded as unusual. In my opinion, an error in principle on this basis could only be established if it is shown that no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question.
Objections
The respondent's grounds of objection can be summarized as follows:
(1)The applicant invoiced the respondent for work that had already been invoiced to and paid for by the respondent (Duplication Objection);
(2)The applicant made an error in that, while the practitioner (Ms Bonnie Scovell) was on leave, Ms Best's former husband obtained an injunction to prevent the respondent from taking action which the respondent and Ms Traianou had been previously been advised to take by the applicant (Injunction Objection); and
(3)Ladybug was placed into liquidation - the respondent informed Ms Scovell of this fact yet the applicant still invoiced the respondent for a court appearance and subsequent work when such work was not required (Liquidation Objection).
Determination
In accordance with O 66 r 54 RSC, I have reconsidered and reviewed my assessment. I consider each of the objections in turn.
Duplication Objection
I had regard to the oral submissions of each of the applicant and the respondent at the hearing of the assessment on 10 June 2020, the invoices rendered to the respondent and the Scovell Affidavit in assessing the global amount at $6,500.
I was satisfied that the work the subject of the invoices was completed by the applicant and that the work it was reasonable. I remain so satisfied.
While the respondent may perceive that the work was duplicated and/or unnecessary, I consider that an amount of $6,500 represents an overall assessment of the reasonable amount for the work performed.
In any event the objection amounts to an objection as to quantum and accordingly, there is no error in principle demonstrated by the Duplication Objection.
The Injunction Objection
It appears from the nature of the objection that the respondent is actually objecting to the way in which the applicant conducted the work for which he was invoiced. The respondent submits that an injunction was obtained as a result of Ms Scovell's absence due to her being on leave.
Ms Scovell deposes, in her affidavit sworn 31 October 2019, that:
5(i) On some date between 6 and 12 April 2018 the former husband's solicitors made an application to the Family Court of Western Australia for [certain] orders…
(j)On 20 April 2018, there was a hearing in the Family Court of Western Australia in which the court heard [the] application by the former husband … At that hearing, which I attended on behalf of Ms Traianou, I made, upon her and the respondent's instructions, submissions in opposition to the former husband's application. …
(k)At the hearing on 20 April 2018, the Court rejected my submissions and instead made the orders … injuncting Ms Traianou from taking any step to or in any claim by her as to her asserted right in the property other than in the Family Court of Western Australia.
I am satisfied, on the basis of the matters deposed to in the Scovell Affidavit, that the injunction was not obtained in the absence of Ms Scovell and that her instructions given by the respondent were to appear and argue against the injunction application in the Family Court. The work invoiced for by the applicant in relation to that application for preparation and attendance was reasonable.
In any event the objection amounts to an objection as to quantum and accordingly, there is no error in principle demonstrated by the Injunction Objection.
Liquidation Objection
Ms Scovell deposes, in her affidavit sworn 31 October 2019, that:
5(l) After 20 April 2018, steps were taken by us to progress the matter toward a hearing of Ms Traianou's assert (sic) proprietary interest in the property, including the giving of full and comprehensive disclosure to the former husband; However, on some dated between 19 June 2018 and 9 July 2018 we became aware that a liquidator had been appointed to Ladybug on 19 June 2018 and as such any prospective claim against any property held by that entity (including the property) became thereupon defunct by reason of the liquidation, but also because there was a secured creditor of the property.
I am satisfied that, on the basis of the matters deposed to in the Scovell Affidavit, the reason for the respondent not proceeding with any action to enforce the Contract was the liquidation of Ladybug. It was not due to any fault of the applicant. I remain satisfied that the amount of $6,500 is a reasonable amount for the work performed by the applicant pursuant to the retainer.
Conclusion
I dismiss the respondent's objections in their entirety.
I affirm the amount as assessed.
I will issue a certificate of assessment in the amount of $6,500 forthwith.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KC
Associate to Registrar Whitby30 JULY 2020
0
3
3