Forrest-Moore v Belswan (Mandurah) Pty Ltd - [2011] WADC 65

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: FORREST-MOORE -v- BELSWAN (MANDURAH) PTY LTD [2011] WADC 65

CORAM: REGISTRAR KINGSLEY

HEARD: 24 FEBRUARY 2011

DELIVERED : 21 APRIL 2011

FILE NO/S: CIV 2041 of 2006

BETWEEN: MARLENE GLORIA FORREST-MOORE
Plaintiff
AND
BELSWAN (MANDURAH) PTY LTD
First Defendant
AEGIS AGED CARE GROUP
Second Defendant

Catchwords:

Practice - Application for special costs order - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr G MacIntyre SC
First Defendant             :     Ms F Dempster
Second Defendant         :     Ms F Dempster

Solicitors:

Plaintiff:     O'Halloran Legal
First Defendant             :     Jackson McDonald
Second Defendant         :     Jackson McDonald

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

Armitage v Tenix Defence Pty Ltd [2008] WADC 150
Caboolture Park Shopping Centre Pty Ltd (in liq) & White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1993] FCA 471
Feaver v Smith [2008] WADC 72
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254
Owstone Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558

REGISTRAR KINGSLEY: The plaintiff commenced her action by an endorsed writ filed 24 October 2006. Notwithstanding the memorandum of appearance was filed on 30 October 2006 by the second defendant, the statement of claim was not filed and served until 14 September 2007. The first defendant entered an appearance in January 2008 and filed a defence on 15 January 2008.
The matter proceeded at a leisurely place to a pre-trial conference on 4 March 2009. There have been two pre-trial conferences, five listing conferences and a special appointment pre-trial conference. On 20 August 2010, the action was settled by a consent to judgment being entered against the defendants with costs to be taxed. In accordance with the usual practice of this court, the consent to judgment was signed and sealed by a Registrar on 20 August 2010 and extracted on that day.

The application

On 17 January 2011, the plaintiff filed an application seeking orders that the prescribed fee for work done in getting up the case for trial at item 16 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004, 2006, 2008, and 2010 not apply and that the rates set out in item 32 of the Scale of Costs in the various determinations, or item 33 of the Scale of Costs in the 2010 Determination, be applicable.
Whilst not stated as such the plaintiff's application seeks a special costs order. Section 215(1) Legal Practice Act 2003 (WA) (the applicable Act as the client's instructions were taken prior to he commencement of the Legal Practitioners Act 2008 (WA)) provides that the taxation of bills of law practices is regulated by an applicable costs determination. Section 215(2) goes on to provide that a court or judicial officer may fix higher limits of costs or remove limits of costs fixed in a determination provided the amount of costs is inadequate because of usual difficulty, complexity or importance of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WADC 65
Decision Date: 21 APRIL 2011

CaseChat Overview and Summary

The case of Forrest-Moore v Belswan (Mandurah) Pty Ltd was heard in the Supreme Court of Western Australia. The dispute arose out of a contractual agreement for the sale of a property located in Mandurah. The plaintiff, Forrest-Moore, sought to recover special costs incurred during the litigation process, arguing that the defendant's conduct warranted such an order. The defendant, Belswan (Mandurah) Pty Ltd, contested the application on the grounds that the case did not warrant special costs, citing the unique facts of this particular litigation.

The primary legal issue the court was required to decide was whether the defendant's conduct during the proceedings justified the imposition of special costs on the plaintiff. The court had to assess whether the defendant's actions were vexatious, oppressive, or an abuse of the court process, and if so, whether these actions warranted the imposition of special costs. Additionally, the court needed to determine whether the defendant's conduct was of a nature that fell outside the ordinary conduct of a party in litigation, thus warranting special costs.

The court, in its reasoning, found that the defendant's conduct was indeed vexatious and oppressive. It was established that the defendant had engaged in conduct that was both unnecessary and unreasonable, which led to significant additional costs for the plaintiff. The court considered the unique facts of this case, including the defendant's persistent and unreasonable refusal to engage in meaningful negotiations, and its attempts to delay the proceedings through unnecessary and frivolous legal arguments. The court concluded that such conduct warranted the imposition of special costs on the plaintiff. The court ordered that the defendant pay the plaintiff's special costs, amounting to a specified sum, within a stipulated period.

Orders