Eucalyptus Gold Mines Pty Ltd v Nzuri Copper Limited

[2018] WASC 265

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   EUCALYPTUS GOLD MINES PTY LTD -v- NZURI COPPER LIMITED [2018] WASC 265

CORAM:   REGISTRAR WHITBY

HEARD:   ON THE PAPERS

DELIVERED          :   22 AUGUST 2018

FILE NO/S:   CIV 1885 of 2016

BETWEEN:   EUCALYPTUS GOLD MINES PTY LTD

Plaintiff

AND

NZURI COPPER LIMITED

Defendant

Catchwords:

Review of taxation

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 54

Result:

Plaintiff's objections dismissed.

Category:    Not Reportable

Representation:

Counsel:

Plaintiff	:	Mr G Lawton
Defendant	:	Ms M Coulson

Solicitors:

Plaintiff	:	Lawton Lawyers
Defendant	:	Coulson Legal

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

Nil

REGISTRAR WHITBY:

1. On 16 August 2017 His Honour Justice Tottle ordered that the Plaintiff pay the Defendant’s costs incurred and thrown away by reason of the Plaintiff’s amendments to its Statement of Claim in an amount to be taxed if not agreed (Costs Orders).

2. The Defendant applied for taxation of the Defendant’s Bill of Costs dated 19 December 2017 pursuant to the Costs Order (Bill of Costs).

3. On 9 May 2018, I taxed the Bill of Costs and allowed the sum of $31,010.63. I note that the taxing fee had been incorrectly calculated and should be $763.80 (2.5% of the amount allowed of $30,552.35 instead of the $458.28 calculated at taxation). Therefore, the total allowed was $31,316.15.

4. At the conclusion of the taxation, Mr Lawton, for the Plaintiff, requested time to consider whether any objections would be made to the signing of the allocator. I allowed the Plaintiff until 4:00pm on 16 May 2018 to file and serve any objections in writing.

5. On 16 May 2018, the Plaintiff filed written objections to the amount allowed at taxation for each of Item 8 (Preparation of Case) and Items 9 and 10 (Costs of Taxation) of the Bill of Costs.

6. I have therefore, in accordance with O 66 r 54 of the Rules of the Supreme Court 1971 (WA), reconsidered and reviewed my assessment in relation to the Bill of Costs.

7. The ground of objection for Item 8 is that the allowance of $9,524.36 was unreasonable to such a degree that it constituted an error in principle.

8. The grounds of objection repeat the submissions that were made by the Plaintiff at the taxation. In my view, the objections raised by the Plaintiff go to the quantum allowed at taxation. I do not consider that the allowance made was so unreasonable as to constitute an error in principle. The objection to the allowance at Item 8 is dismissed.

9. The ground for objection for items 9 and 10 is that, in allowing the Defendant the costs of the taxation on an indemnity basis because the Plaintiff acted unreasonably in rejecting a Calderbank offer, an error in principle had occurred.

10. I did not, in fact, find that the Defendant acted unreasonably in rejecting a Calderbank offer. I assessed the amount at Item 9 of the Bill as a reasonable allowance for drawing the Bill of Costs (including the Response of Objections – no further allowance is made for this). I assessed the amount at Item 10 as the reasonable allowance for preparing for, and attending, the taxation.

11. Any submissions from Plaintiff as to effect of the provisional assessment are not required to be considered as I did not determine the allowances at items 9 and 10 by reference to indemnity costs.

12. Further, the Plaintiff seeks to rely upon Substituted Objections filed on 25 June 2018. These objections were filed at the request of the Registrar to delete any reference to the amount of a provisional assessment. The Plaintiff sought to expend upon the objections originally filed on 16 May 2018.

13. Notwithstanding that I indicated that I would not rely upon the Substituted Objections, I have reviewed the same. Given that the Substituted Objections are amended to make further submissions in relation to the extent to which the provisional assessment ought be referred to upon review of the taxation, I do not consider that they change my position upon review; as I did not find that the allowance made at items 9 and 10 of the Bill of Costs was made on an indemnity basis.

    Conclusion

14. I dismiss the Plaintiff’s objections in their entirety.

15. I affirm the amount as taxed.

16. I sign the allocator on the Bill of Costs in the amount of $31,316.15.

17. I have issued an interim certificate in the amount of $20,064.40 (comprising of $19,576.00 being the sums of items not objected to, plus $489.40 being the 2.5% taxing fee).

18. I issue a final certificate for the balance in the sum of $11,251.75 (comprising of $10,976.35 plus $274.40 being the 2.5% taxing fee).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EP
ASSOCIATE

28 AUGUST 2018