EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd
[2008] WASC 275 (S)
EDWF HOLDINGS 1 PTY LTD -v- EDWF HOLDINGS 2 PTY LTD [2008] WASC 275 (S)
| Link to Appeal : | [2010] WASCA 78 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 275 (S) | |
| Case No: | CIV:1298/2008 | 22 24 SEPTEMBER 2008 | |
| Coram: | MARTIN CJ | 27/11/08 | |
| 22/01/09 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application partially successful | ||
| B | |||
| PDF Version |
| Parties: | EDWF HOLDINGS 1 PTY LTD (ACN 114 267 748) EDWF HOLDINGS 2 PTY LTD (ACN 114 267 793) EDWF MANAGER PTY LTD (ACN 115 374 386) |
Catchwords: | Costs Special costs order Principles to be applied Whether proceedings were proceedings of 'importance' Adequacy of evidence in support of application |
Legislation: | Legal Practice Act 2003 (WA), s 215(2) Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA) Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 (WA) |
Case References: | EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 Heartlink Ltd v Jones [2007] WASC 254 (S) Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [No 4] [2006] WASC 317 (S) SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 23 JANUARY 2009 FILE NO/S : CIV 1298 of 2008 BETWEEN : EDWF HOLDINGS 1 PTY LTD (ACN 114 267 748)
- Plaintiff
AND
EDWF HOLDINGS 2 PTY LTD (ACN 114 267 793)
First Defendant
EDWF MANAGER PTY LTD (ACN 115 374 386)
Second Defendant
Catchwords:
Costs - Special costs order - Principles to be applied - Whether proceedings were proceedings of 'importance' - Adequacy of evidence in support of application
Legislation:
Legal Practice Act 2003 (WA), s 215(2)
(Page 2)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 (WA)
Result:
Application partially successful
Category: B
Representation:
Counsel:
Plaintiff : Mr C L Zelestis QC & Mr J A Thomson
First Defendant : Mr M J McCusker QC & Mr A J Power
Second Defendant : Mr M J McCusker QC & Mr A J Power
Solicitors:
Plaintiff : Deacons
First Defendant : Clayton Utz
Second Defendant : Clayton Utz
Case(s) referred to in judgment(s):
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275
Heartlink Ltd v Jones [2007] WASC 254 (S)
Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [No 4] [2006] WASC 317 (S)
SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2)
(Page 3)
1 MARTIN CJ: On 28 November 2008, I published reasons for my conclusion that the plaintiff's claim should be dismissed, and entered judgment to that effect: EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275. As the first defendant foreshadowed an application for particular orders in relation to the costs of the proceedings, a timetable for the bringing of that application and for the exchange of submissions relating to it was established. I further directed, without objection, that the first defendant's application for a special costs order be determined on the papers without further hearing.
2 The first defendant applies for orders pursuant to s 215(2) of the Legal Practice Act 2003 (WA) (the Act) which empowers the court to make special costs orders in the circumstances specified in that section. The orders sought by the first defendant are orders to the effect that its costs be taxed without reference to the limits provided in item 3(b) of the relevant costs determination (Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA)) and items 7(b), 16 and 19(a) of the relevant costs determination (Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 (WA)). The item covered by the 2006 costs determination is the item relating to the preparation of the defence. The items covered by the 2008 costs determination are items relating to the provision of discovery, getting up for trial, and fee on brief for junior counsel.
The principles to be applied
3 I will adopt the approach to s 215 of the Act which I enunciated in Heartlink Ltd v Jones [2007] WASC 254 (S). Neither party submitted that I should do otherwise. Accordingly, I approach the first defendant's application on the basis that there are two issues to be addressed, namely:
(a) is there a fairly arguable case to be put before a taxing officer to the effect that the first defendant's bill of costs should tax out at more than the limit which would be imposed by the relevant costs determination; and
(b) is the action of unusual difficulty, complexity, or importance?
4 It is convenient to address the second limb first, because the plaintiff concedes that I can and should conclude that these proceedings were proceedings of 'importance' within the meaning of s 215 of the Act. That concession was properly made. The proceedings concerned a transaction relating to a valuable asset - namely, a wind farm. Although there was no direct evidence as to the value of the wind farm, the evidence as to the cash flow it generated suggests that its value would exceed $100,000,000.
(Page 4)
- The issues were also of considerable importance to the parties because of their competitive position in the market for the supply of energy in Western Australia. As the court's power under s 215 of the Act is enlivened by satisfaction of any of the factors of 'unusual difficulty', 'complexity' or 'importance' (see SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2) [106]), it is unnecessary to address the factors other than 'importance' specified in the section.
5 My observations as to the importance of these proceedings to the parties informs my assessment of the first limb of the issues to be addressed under s 215 - that is, the issue concerning the arguable case for raising the limits imposed by the relevant items. This is because the significance of the issues at stake to the parties is relevant to the degree of work properly and reasonably done in preparing for and presenting the case at trial.
The evidence in support of the application
6 The first defendant relies upon an affidavit of its solicitor. He deposes to his estimate of the costs which were billed to the first defendant in relation to the particular items the subject of the application. However, the affidavit provides no details or particulars whatever to support the estimates which he has made. The affidavit does not depose to the professional time spent in relation to each item, or as to the practitioners involved, or as to the rates used when calculating the fees charged to the first defendant. It follows that the evidence is of little or no value, because it does not enable any meaningful comparison to be undertaken of the work allowed in the relevant item of the relevant costs determination, and the work actually performed. The affidavit also annexes invoices rendered by junior counsel. However, those invoices are equally unhelpful, as they do not identify the professional time spent on any particular aspect of the case, or the rate at which fees have been rendered.
7 Despite the porosity and inadequacy of the evidence proffered in support of the first defendant's application, as the questions to be addressed under s 215 of the Act are to be addressed as matters of impression rather than detailed evaluation (Heartlink v Jones (S) [20] and Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union[No 4] [2006] WASC 317 (S) [13]), I will do the best I can on the materials available.
(Page 5)
The defence
8 Item 3(b) of the 2006 costs determination allows a maximum amount of $3,630 for the preparation of the defence, assessed at 10 hours of senior practitioner time. Although the defence was not a particularly helpful document, in that it failed to enunciate with clarity the precise way in which the first defendant proposed the court should address the issues raised in the proceedings, it canvassed a wide range of factual issues relating to the operation of the wind farm and the reasons why consent to the transaction was refused. It seems to me to be fairly arguable that more than 10 hours of a senior practitioner's time was properly spent preparing and finalising the defence, and I therefore propose to remove the upper limit on that item for the purposes of taxation.
Discovery
9 Item 7(b) of the 2008 determination provides a limit for the provision of discovery of $3,960. This has again been calculated on the basis of 10 hours of senior practitioner time. The evidence filed in support of the application reveals that the documents discovered comprised approximately eight lever arch folders of documents. Those documents covered a variety of topics including topics relating to the operation of the wind farm, and the reasons why consent to the proposed transaction was refused. Advice also had to be given in relation to legal professional privilege with respect to some of the documents discovered. Again, there seems to me to be an arguable basis for the proposition that more than 10 hours of the time of a senior practitioner was properly spent providing discovery in this case, and I therefore propose to allow taxation to proceed without reference to the upper limit imposed in respect of this item.
Getting up
10 Item 16 of the 2008 determination provides that the maximum allowable for getting up case for trial is $39,650, which is calculated at 100 hours of senior practitioner time.
11 The solicitor to whom I have referred estimates that the costs billed to the first defendant in relation to getting up this action for trial exceed $250,000. However, that estimate suffers the various deficiencies to which I have referred, and is of little assistance.
12 I note that the trial was conducted over only two and a half days, and did not involve unusually complex issues of law. Cross-examination of the plaintiff's witnesses was limited, and a substantial part of the expert
(Page 6)
- evidence tendered by the first defendant was inadmissible. Limited oral and written submissions were made. Evidence was adduced from a number of witnesses, but the number of witnesses was not unusual, nor were the topics addressed unusually complex or protracted.
13 On the basis of the materials made available to me, it is not possible for me to conclude that there is a fairly arguable case to lift the limit imposed by the costs determination in relation to getting up case for trial, and I do not therefore propose to make any order in that regard.
Fee on brief for junior counsel
14 Item 19(a) of the 2008 determination provides that the maximum allowable for fee on brief for junior counsel is $12,760, allowing for three days preparation and the first day of trial. As I have indicated, the affidavit of the first defendant's solicitor annexes the invoices rendered by junior counsel for the first defendant. Those invoices, which cover all work done from the time of delivery of the brief until completion of the trial, exceed $200,000. However, as I have indicated, the form in which the invoices are rendered provides no basis for assessing the amount properly done by junior counsel, as such, as compared to providing advice to the solicitors in relation to their getting up the case for trial. The solicitor deposes that he estimates junior counsel spent seven days preparing for the trial. Given the character of the trial to which I have referred - namely, a trial of two and a half days' duration in which there was limited cross-examination of the plaintiff's witnesses and limited oral and written submissions, it is difficult to see how seven days could have been properly and reasonably spent by junior counsel doing work which would ordinarily be comprised within the fee on brief. Accordingly, the materials presently available to me do not persuade me that there is an arguable case to the effect that this item should tax at above the limit specified in the relevant costs determination, and I propose to make no order in relation to it.
Conclusion
15 For these reasons, I propose to allow the first defendant's application insofar as it relates to item 3(b) of the relevant costs determination 2006 (defence) and item 7(b) of the costs determination 2008 (discovery), but not otherwise.
16 The orders will therefore be that the first defendant's costs be taxed without reference to the limits imposed by item 3(b) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination
(Page 7)
- 2006 and item 7(b) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008. As each party has been partially successful in relation to the issues raised by the first defendant's application, there should be no order as to the costs of that application.
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