Frigger v Mervyn Jonathon Kitay in His Capacity as Liquidator of Computer Accounting and Tax Pty Ltd (in Liquidation) [No 9]
[2016] WASC 92 (S)
•13 APRIL 2016
FRIGGER -v- MERVYN JONATHON KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION) [No 9] [2016] WASC 92 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 92 (S) | |
| Case No: | CIV:2765/2010 | ON THE PAPERS | |
| Coram: | ALLANSON J | 13/04/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiffs to pay defendants' costs Costs to be taxed | ||
| 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 LIQUIDATION) COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION) |
Catchwords: | Practice and procedure Costs Whether to be fixed or taxed Scale costs Turns on own facts |
Legislation: | Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA), Item 10(1) |
Case References: | Frigger v Kitay in his capacity as Liquidator of Computer Accounting & Tax Pty Ltd (In Liquidation) [No 9] [2016] WASC 92 Verney v Verney [2016] WASC 110 |
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 LIQUIDATION)
First Defendant
COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQUIDATION)
Second Defendant
Catchwords:
Practice and procedure - Costs - Whether to be fixed or taxed - Scale costs - Turns on own facts
Legislation:
Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA), Item 10(1)
Result:
Plaintiffs to pay defendants' costs
Costs to be taxed
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):
Frigger v Kitay in his capacity as Liquidator of Computer Accounting & Tax Pty Ltd (In Liquidation) [No 9] [2016] WASC 92
Verney v Verney [2016] WASC 110
1 ALLANSON J: On 30 March 2016, I made orders on the parties' competing applications for security for costs. I dismissed the plaintiffs' application and allowed that by the defendants. The defendants have asked me to fix costs, but, in effect, to conduct an assessment based on an affidavit as to the time actually spent in preparing for and arguing the applications. The schedule in the Consolidated Practice Directions, by reference to which costs are generally fixed, may fall well short of the amount that would be fixed on taxation. Mr Lenhoff, solicitor for the defendants, made it clear that the defendants were not seeking costs fixed in accordance with that schedule.
2 I do not believe that it is generally desirable for a judge to attempt to fix costs if it cannot be done within the schedule in the Consolidated Practice Directions, or with minor adjustments. But there are instances where the court might act to avoid further costs being incurred in the taxation process: see, for example, Verney v Verney [2016] WASC 110. And this matter has features which support a quick resolution of the costs question. There have been many interlocutory applications, in some of which costs have been fixed but in others order have been made for the costs to be taxed. It would be preferable to alleviate the cost to the parties and to the court of another taxation. The defendants are a liquidator and a company in liquidation, with funding constraints. The defendants have, to date, experienced difficulty in enforcing existing costs orders.
3 At the request of the defendants, on 30 March 2016, I ordered that the plaintiffs have to 8 April 2016 to file any submissions in response to the submissions and affidavit of Mr Lenhoff regarding the defendants' costs, and that the decision whether the costs are to be fixed or taxed, and if fixed in what amount, would be determined on the papers. The plaintiffs did not file any submission or request an extension of time by 8 April 2016.
Background
4 The background to this matters is set out in the reasons for judgment on the application for security: Frigger v Kitay in his capacity as Liquidator of Computer Accounting & Tax Pty Ltd (In Liquidation) [No 9] [2016] WASC 92.
5 In short, on 21 August 2014, the plaintiffs applied for additional security for costs, to be paid into the court. The application was supported by an affidavit of Mrs Frigger, sworn 21 August 2014. On 16 January 2015 the defendants filed their application, supported by an affidavit of David Abraham Lenhoff, sworn 16 January 2015. On 2 February 2015, Mrs Frigger swore an affidavit in response to the application.
6 At a directions hearing on 6 February 2015, the competing applications were programmed for a hearing on 13 February 'for no more than one hour'. Written submissions were dispensed with, unless a party chose to file them.
7 On 12 February 2015, Mrs Frigger swore a second affidavit in opposition to the security for costs application. On 12 February, the defendants filed written submissions.
8 The competing applications were heard on 13 February 2015. The direction limiting the length of the hearing proved ineffective, and the hearing time was approximately two hours and 45 minutes. At the conclusion of the hearing I reserved the decision, while giving the plaintiffs the opportunity to file a supplementary affidavit. The plaintiffs did not file further evidence.
9 Delivery of reasons was deferred while the plaintiffs' application to restrain the defendants' solicitors was determined by another judge. On 30 March 2016, the decision on the applications for security was handed down. The plaintiffs' application was dismissed. The defendants' application was successful, although the amount awarded was less than the amount sought.
10 The defendants are entitled to their costs.
Can costs be fixed?
11 In his affidavit regarding the costs incurred, Mr Lenhoff deposes that he is a solicitor with more than five years post admission experience and a 'senior practitioner'. He maintained an accurate record of the time spent on matters. He says that he will, for the purposes of this application, rely on the current hourly charge out rate for senior practitioners in the determination of $473 an hour, although his charge out rate is less than that. Mr Lenhoff states that he spent the following time:
1. seven hours and 30 minutes drafting and settling a conferral letter, a minute of proposed orders, and supporting affidavit;
2. seven hours drafting and settling submissions relied upon by the defendants at the hearing;
3. one hour and six minutes preparing for court;
4. three hours at the hearing itself;
giving a total of 18 hours and 36 minutes, at $8,797.80.
12 Mr Lenhoff says he further attended a conference 0.8 of an hour with a costs consultant, and spent at least two hours perusing documentation including the plaintiffs' affidavits. This gives a further two hours and 48 minutes at $1,324.40.
13 Finally, he seeks an allowance of two hours and 30 minutes for perusing the judgment, preparing the affidavit in support of the costs orders, and a minute of orders, and attending on the reserved decision: $1,182.50.
14 The total is $11,304.70. The maximum allowable under the item 10(a) of the Legal Profession (Supreme Court) (Contentious Business) Determination 2014 is $11,550. That, however, is on the basis of two days preparation and one day hearing. My preliminary assessment of this matter is that it falls far short of a requiring two days preparation, even allowing for the fact that there were competing applications. I had dispensed with the requirement for written submissions, (although the defendants chose to file them). The defendants' affidavit was largely material relating to its attempts to enforce earlier costs orders, that is, material the defendants had already compiled. The applications were not complex in either law or fact.
15 I do not, however, believe that I should deny the defendants the opportunity to justify their costs in an amount greater than allowed in the schedule to the consolidated practice directions. That will require taxation. There is no satisfactory shortcut to a fair assessment in this case.
16 The costs of the applications are to be taxed if not agreed.
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