| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GOLDRANGE PTY LTD -v- STEWART & ORS [2002] WADC 230 CORAM : JENKINS DCJ HEARD : 9 AUGUST 2002 DELIVERED : 4 NOVEMBER 2002 FILE NO/S : CIV 1639 of 1995 BETWEEN : GOLDRANGE PTY LTD Plaintiff
AND
PETER WILLIAM STEWART
WENDY MARGARET STEWART
First Defendants
AND
LYON DAVEY PTY LTD t/as DAVEY REAL ESTATE
Second Defendant
Catchwords: Costs - Special costs order
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Legislation:
Legal Practitioners (Supreme Court) (Contentious Business) Determinations 1996 and 1999
Supreme Court Costs Scale 1991
Rules of the Supreme Court, O 66 r 12
Result: The taxing officer is authorised to tax the second defendant's costs under item
13 of the Supreme Court (Contentious Business) Determination 1999 without
regard to the limit in that item
The value of the subject matter of the action be set at $90,102 Representation:
Counsel:
Plaintiff : Mr J Eller
First Defendants : No appearance
Second Defendant : Mr I R Gillon
Solicitors:
Plaintiff : John Eller
First Defendants : Dod Price & Assoc
Second Defendant : Lawton Gillon
Case(s) referred to in judgment(s):
Tenbohmer v Eden (1992) 6 WAR 366
Case(s) also cited:
Nil
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1 JENKINS DCJ: On 20 March 2002 I delivered a judgment in this action. I dismissed the plaintiff's claim against the second defendant and ordered it to pay the second defendant's costs of the action.
2 At the request of the second defendant I reserved the question of a special costs order and gave leave for it to bring an application for such an order within 14 days. The second defendant filed a chamber summons seeking an order that the taxation of the second defendant's costs to be paid by the plaintiff, be done so on the basis that: (a) The limit in item 13 of the schedule to the Supreme Court (Contentious Business) Determination 1999 be removed; (b) The limit in item 13 of the schedule to the Supreme Court (Contentious Business) Determination 1996 be removed; (c) The limit in item 13 of the Supreme Court Costs Scale 1991 that applied for the period from 1 April 1991 to 31 January 1997 be removed; and (d) The value of the subject matter of the action be set at $90,102. 3 The application is supported by the affidavit of Ian Ross Gillon, a solicitor in the firm Lawton Gillon, solicitors for the second defendant. The affidavit deposes that the second defendant has been represented in this action since 22 June 1995 to date. It was represented by the firm of Minter Ellison until 26 June 2001. Mr Gillon estimates, upon perusal of that firm's bills, that it did approximately 109 hours of getting up. Mr Gillon estimates that his firm, which has represented the second defendant since 26 June 2001, did approximately 55 hours of getting up. That is a total of 164 hours of getting up. 4 At the hearing of the chamber summons the first defendant was not represented. I was satisfied that the first defendant's solicitors on the record had been advised of the hearing date and so proceeded to hear the application in the first defendant's absence. The first defendant is affected by my decision on the application because of another costs order that I made between the plaintiff and the first defendant. The plaintiff was represented at the hearing and made submissions in opposition to the application. 5 At the conclusion of the hearing I reserved my decision and directed that the first defendant's solicitor be advised that if, within seven days, no application was made to re-list the chamber summons for further hearing, then I would deliver my decision without further advice to the parties.
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6 I am satisfied that the plaintiff's solicitor was advised of my order. No application having been made to re-list the chamber summons I now deliver my decision.
Special costs order 7 Rules of the Supreme Court O 66 r 12 provides that a special costs order may be made by reason of the unusual complexity or importance of the case or for any other good or sufficient reason. A special costs order is an order that any particular allowances and any relevant scale be raised or a limit removed. In giving any such direction I may fix a limit within which the taxing office may allow such costs. 8 The second defendant seeks to have the limit in item 13 of the schedule to the relevant determinations removed. Item 13 is the allowance for getting up the case for trial. 9 Item 13 of the schedule to the Supreme Court (Contentious Business) Determinations 1996 and 1999 are identical. They allow for a maximum of 100 hours of getting up to be performed by a senior practitioner. Par 7(5) of the 1996 determination states that if more than 100 hours must reasonably be spent on getting up the case for trial, then the committee considers that to be a basis to seek a special order for costs under O 66 r 12. 10 From the commencement of this action up to 31 January 1997 item 13 of the then Supreme Court Costs Scale allowed $6,000 for the first $25,000 of the value of the subject matter and two per cent of the value of the balance. 11 The second defendant submits that the action was complex and time consuming by reason of the length of time from its commencement to trial. It is submitted that a combination of these matters warrant a lifting of the limit in item 13. By referring to the amount of time put in to the matter I understand the second defendant to be submitting that because the matter commenced in 1995 and was not concluded until 2002 through no fault of its own, it had to spend more time in getting the case up for trial than would normally be the case. As to the complexity of the matter, the second defendant relies upon the plaintiff's claims against it in negligence and for breach of statutory duty and the complexity of the four alleged misrepresentations.
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12 The taxation of this matter is complicated by reason of the action having been conducted over seven years when three different costs scales were in effect. The plaintiff and the second defendant agree that the taxing officer will probably make a determination as to what percentage of the costs are to be taxed under each of those scales. The taxing officer will then reduce the limits in the relevant costs scales to reflect those percentages. It would seem that an approach along these lines is appropriate as unless the limits are reduced in some way the second defendant would be able to recover all 164 hours of getting up despite the limit of 100 hours on the more recent schedules. It is because the second defendant believes that the taxing officer will take this approach that it seeks a special costs order.
13 The plaintiff submitted that the reason the action took so long to get to trial was the fault of the second defendant's former solicitors. It submitted that interlocutory matters took over four and a half years to complete and that the plaintiff did everything it could to bring the matter to trial. The plaintiff submitted that when those interlocutory matters were proceeding the matter was not complex. The plaintiff conceded that the trial became complex because of legal issues but queried whether it was of such unusual complexity as to justify a special costs order. 14 In the circumstances of this case it is not argued that the matter was one of any importance, other than to the parties. I must therefore consider whether the case was of unusual complexity. In my opinion the case was not of unusual complexity. In some respects it was complex. However the phrase "unusual complexity" signifies something more than the complexities of this case. I must therefore go on to consider whether the amount of work done in getting the case up for trial is of itself a good or sufficient reason for making the orders sought by the second defendant: Tenbohmer v Eden (1992) 6 WAR 366 at 369. 15 In making this determination I have taken into account the length of time that the case took to get to trial. Although I accept that the plaintiff did not delay the case, I also accept that the second defendant was entitled to exercise its rights with respect to interlocutory matters. There is no evidence before me that the second defendant's actions in this regard were so protracted as to warrant penalising it by way of limiting its ability to recover its costs for getting the case up for trial. Further, I accept that when a case of some complexity is conducted over a course of seven years the work involved in getting it up for trial is greater than if it went to trial within a much shorter time frame. I am of the opinion that the complexity
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of the matter together with the extended time frame of the case explains the 164 hours of work done to get the matter up for trial. 16 That is not to say that the second defendant ought to be able to recover the total of those hours. I accept the plaintiff's submission that whilst interlocutory matters were being attended to the case was nothing out of the ordinary. On that basis I see no reason why the limits for getting up for that period ought to be raised. I do accept that once the matter came closer to trial work was done in the getting up of the case for trial that was required because of the complexity of the case at that stage and the length of time since it had commenced. In my opinion this is a good and sufficient reason for making an order under O 66 r 12 to lift the limit in item 13 of the schedule to the Supreme Court (Contentious Business) Determination 1999 but not the limit in that item in the 1996 determination or the 1991 scale of costs.
Value of the subject matter of the action 17 I found that the difference between the amount the plaintiff paid for the land in question and the true value of the land was $90,102. Although I found that there was contributory negligence on behalf of the plaintiff and consequently reduced this figure by 35 per cent in arriving at the damages payable by the first defendants to the plaintiff, the second defendant had to defend the case against it on the basis that the plaintiff was claiming the whole of the difference between the amount it paid for the land and the true value of the land. Thus the appropriate value of the subject matter of the action should be set at $90,102.
Proposed orders 18 I propose to order pursuant to Rules of the Supreme Court O 66 r 12 that the taxing officer is authorised to tax the costs under item 13 of the Supreme Court (Contentious Business) Determination 1999 without regard to the limit in that item. I propose to further order that the value of the subject matter of the action be set at $90,102. I propose there be a further order that the costs of this application be costs in the cause of the action. Thus the costs of the application will be provided for under the previous costs orders that I have made with respect to the remainder of the costs of the cause.
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