Frigger v Mervyn Jonathon Kitay in His Capacity as Liquidator of Computer Accounting and Tax Pty Ltd (in Liq) [No 10]
[2016] WASC 63 (S)
•3 MAY 2016
FRIGGER -v- MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQ) [No 10] [2016] WASC 63 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 63 (S) | |
| Case No: | CIV:2765/2010 | ON THE PAPERS | |
| Coram: | LE MIERE J | 3/05/16 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff pay costs of the defendant fixed | ||
| B | |||
| PDF Version |
| Parties: | ANGELA CECILIA THERESA FRIGGER ANGELA CECILIA THERESA FRIGGER AND HARTMUT FRIGGER IN THEIR CAPACITIES AS TRUSTEES OF THE FRIGGER SUPERANNUATION FUND HARTMUT HUBERT JOSEF FRIGGER MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQ) COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQ) |
Catchwords: | Costs Self-represented solicitor and engaged counsel Fixing costs Turns on own facts |
Legislation: | Legal Profession (Supreme Court) Contentious Business Determination 2014 |
Case References: | Dobree v Hoffman (1996) 18 WAR 36 Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (In liq) [No 10] [2016] WASC 63 Huntingdale Village Pty Ltd v Corrs Chambers Westgarth [2011] WASC 44 London Scottish Benefit Society v Chorley (1884) 13 QBD 872 Soia v Bennett [2014] WASCA 27; (2014) 46 WAR 301 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- ANGELA CECILIA THERESA FRIGGER AND HARTMUT FRIGGER IN THEIR CAPACITIES AS TRUSTEES OF THE FRIGGER SUPERANNUATION FUND
HARTMUT HUBERT JOSEF FRIGGER
Plaintiffs
AND
MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQ)
First Defendant
COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQ)
Second Defendant
Catchwords:
Costs - Self-represented solicitor and engaged counsel - Fixing costs - Turns on own facts
Legislation:
Legal Profession (Supreme Court) Contentious Business Determination 2014
Result:
Plaintiff pay costs of the defendant fixed
Category: B
Representation:
Counsel:
Plaintiffs : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiffs : In person
First Defendant : Holborn Lenhoff Massey
Second Defendant : Holborn Lenhoff Massey
Case(s) referred to in judgment(s):
Dobree v Hoffman (1996) 18 WAR 36
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (In liq) [No 10] [2016] WASC 63
Huntingdale Village Pty Ltd v Corrs Chambers Westgarth [2011] WASC 44
London Scottish Benefit Society v Chorley (1884) 13 QBD 872
Soia v Bennett [2014] WASCA 27; (2014) 46 WAR 301
- LE MIERE J:
Judgment dismissing application to restrain Holborn Lenhoff Massey acting
1 The plaintiffs applied for orders restraining Holborn Lenhoff Massey (HLM), a firm of lawyers, from acting for the defendants in this proceeding. I dismissed the application: Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (In liq) [No 10] [2016] WASC 63.
Costs application
2 HLM apply for orders that the plaintiffs pay their costs and that the costs be fixed. The plaintiffs resist an award for costs in favour of HLM on the ground that no profit costs should be allowed to a self-represented legal practitioner. Furthermore, the plaintiffs say that if the court awards costs to HLM it should not fix those costs.
Self-represented solicitor entitled to professional costs
3 HLM acted as solicitors in their own litigation. HLM engaged Mr Bennett as counsel. The plaintiffs say that solicitors who represent themselves in their own litigation are not entitled to profit costs. The plaintiffs rely upon the decision to that effect by the Full Court in Dobree v Hoffman (1996) 18 WAR 36 which I followed in Huntingdale Village Pty Ltd v Corrs Chambers Westgarth [2011] WASC 44. In Soia v Bennett [2014] WASCA 27; (2014) 46 WAR 301 the Court of Appeal held that the Full Court decision in Dobree v Hoffman was wrong and should not be followed. The Court of Appeal held that the exception to the general rule that a successful litigant in person may not recover costs for time spent in conducting litigation that was introduced by London Scottish Benefit Society v Chorley (1884) 13 QBD 872 applies when the successful litigant in person is a solicitor who acted on his or her own behalf. I am bound to follow that decision. Accordingly, HLM may recover their costs in acting for themselves and in retaining counsel to act for them.
Costs follow the event
4 The general rule is that costs follow the event, that is a successful party is awarded costs against the unsuccessful party. In this case there is no reason to depart from the general rule. The plaintiffs should pay HLM's costs.
Fixing costs
5 The court has a broad discretion to fix costs and will do so where that will avoid undue delay and expense and the court is able to fix costs on a reliable basis. 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.
6 It is appropriate to fix costs in this case. Although the application was brought in the course of proceedings between the plaintiffs and the defendants, the decision dismissing the application finalises the matter as between the plaintiffs and HLM. HLM have provided material to the court which enables it to fix the costs and thereby simplify the resolution of the matter and avoid the trouble and expense of assessment by a taxing officer.
Scale costs
7 The applicable item on the Legal Profession (Supreme Court) Contentious Business Determination 2014 is Item 10 - proceedings in chambers. The maximum amount allowable is $11,550 with an allowance of $473 for attending on a reserved judgment in chambers.
Costs incurred by HLM
8 In his affidavit sworn 22 March 2016 Mr Lenhoff says that the value of his time spent on this matter, at a charge out rate of $450 per hour, is $24,345. Mr Lenhoff is informed by Mr Bennett that the value of Mr Bennett's time exceeds $15,000.
Costs fixed
9 Mr Lenhoff says that in view of the nature of the allegations made against his firm he determined that it was necessary to ask independent counsel to appear on behalf of himself and his firm. I agree. It was necessary in this case for independent counsel to be briefed.
10 I accept that Mr Lenhoff devoted substantial time to this application. I consider that it is appropriate to allow HLM the maximum amount allowed under the Scale for proceedings in chambers and to make a separate allowance for counsel's fees. I will allow HLM's costs in the sum of $11,550 together with an allowance of $473 for attending on a reserved judgment and $15,000 for counsel fees. Accordingly, the appropriate order is that the plaintiffs pay HLM's costs fixed in the sum of $27,023.
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