Hanson Construction Materials Pty Ltd v Tuckett

[2016] WASC 195

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   HANSON CONSTRUCTION MATERIALS PTY LTD -v- TUCKETT [2016] WASC 195

CORAM:   LE MIERE J

HEARD:   16 OCTOBER 2015

DELIVERED          :   1 JULY 2016

FILE NO/S:   CIV 2630 of 2015

BETWEEN:   HANSON CONSTRUCTION MATERIALS PTY LTD

Plaintiff

AND

STUART AARON TUCKETT
First Defendant

JAYNE MAREE TUCKETT
Second Defendant

REGISTRAR OF TITLES
Third Defendant

Catchwords:

Costs - Accidental slip or omission - Where counsel did not take all costs into account when asking for orders - Orders varied - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 21 r 10

Result:

Previous cost order varied

Category:    B

Representation:

Counsel:

Plaintiff:     Ms A M Symons

First Defendant             :     In person

Second Defendant         :     In person

Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Trinix Lawyers

First Defendant             :     In person

Second Defendant         :     In person

Third Defendant           :     No appearance

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

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253

Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1982) 151 CLR 590

LE MIERE J: 

Summary

1. The plaintiff applied for an order that the operation of a caveat lodged by the plaintiff over a property in Lawrence Street, Bedford be extended until further order of the court.  On 16 October 2015 I ordered that the operation of the caveat be extended until further order.  I further ordered that the first defendant and second defendant pay the plaintiff's costs of this proceeding including disbursements fixed in the sum of $3,081.

2. The plaintiff seeks an order that the order for costs be varied by fixing the costs in the sum of $5,677 in lieu of the sum of $3,081 fixed in the order made on 16 October 2015. 

3. For the reasons which follow I have decided to vary the costs order by fixing the costs in the sum of $4,731 in lieu of the sum of $3,081.

Power to vary costs order

1. Under O 21 r 10 of the Rules of the Supreme Court 1971 (WA) the court may correct errors in orders arising from any accidental slip or omission. Halsbury's Laws of Australia at [325‑3125] says that the words 'accidental slip or omission' do not mean only an accidental slip or omission to embody in the judgment something which the court ordered to be done.  They apply also to an accidental omission of a party to ask for, or the court to provide for, something which ought to have been provided for, and which would have been provided for if the attention of the court had been directed to it at the time.  The plaintiff refers to Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1982) 151 CLR 590 where the High Court held that the slip rule in the High Court rules extends to authorise an omission resulting from the inadvertence of a party's legal representative and this is so whether the order has been drawn up, passed or entered. The High Court held that an order under the slip rule is not available as a matter of course. There is a discretion in the court to refuse an order if something has intervened and which would render it inexpedient or inequitable that it be made. In Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253, the Court of Appeal stated that the slip or omission which is said to have given rise to the error must be properly characterised as inadvertent or accidental - the product of oversight rather than afterthought and the error must be such that its correction does not require the exercise of an independent discretion nor is it a matter upon which a real difference of opinion might exist.

Plaintiff's argument

1. The plaintiff says that at the time of moving for costs counsel for the plaintiff overlooked that the plaintiff had paid a filing fee for the originating summons and chamber summons in the sum of $2,608. 

2. I have listened to the audio tape of the hearing on 16 October 2015.  It is not correct that counsel overlooked the filing fee.  The hearing proceeded as follows.  I treated the costs being awarded as being the costs of the interlocutory application.  Counsel stated that the plaintiff's costs were the costs of the preparation and hearing that day.  I said that an appropriate amount would be $473, being the amount allowed under Item 2.7 under the Schedule of Standard Costs Orders for interlocutory applications in the Practice Directions (the Schedule), being the item applicable to an appearance in judge's chambers or CMC list.  Counsel then asked that an amount be allowed for disbursements as well.  I stood the matter down whilst counsel ascertained the disbursements that had been incurred by the plaintiff.  Counsel then informed me that filing fees of $2,608 had been incurred for the originating motion and a chamber summons.  I then stated that those disbursements were in respect of the whole proceeding, not merely the interlocutory proceeding.  Counsel confirmed that was so.  It was on that basis that I ordered costs in the sum of $3,081 for the costs of the proceeding including disbursements. 

Order should be varied

1. On reflection it appears to me that the professional costs counsel asked for were the costs of the preparation and hearing of the interlocutory application but did not take into account the costs of taking instructions for, drafting and settling the originating motion and the court did not make any allowance for those items of work in fixing the costs.  

2. The plaintiff submits that the following items under the Schedule are applicable to this proceeding:

   2.1Chamber summons and O 59 r 9 memorandum -   $473.

   2.2Affidavit in support of application -                   $473.

   2.4 or

   2.8Special appointment -   $2,123

   TOTAL$3,069

   The plaintiff further notes that it prepared seven documents for the application:  an originating summons, chamber summons, supporting affidavit, memorandum of conferral, outline of submissions, certificate of urgency and undertaking as to damages.

3. It is not appropriate that the plaintiff be awarded costs for work under Items 2.1, 2.2 and 2.4.  Item 2.1 is an allowance for the chamber summons and O 59 r 9 memorandum.  Item 2.2 is an allowance for an affidavit in support of the application.  The work covered by each of those items is also covered by Item 2.4.  Item 2.4 is an allowance for a special appointment which includes drafting the application, conferral, one affidavit, preparation, submissions, appearance and reporting.  The appropriate item is Item 2.8 special appointment.  The allowance of $2,123 is for a hearing of no more than two hours duration.  The hearing on 16 October 2015 lasted less than one hour.  In all the circumstances the appropriate amount of costs is $2,123.  Disbursements are $2,608.  Therefore, the appropriate order is that the defendants pay the plaintiff's costs of the proceeding including disbursements fixed in the sum of $4,731.  Paragraph 4 of the orders made on 16 October 2015 will be varied by substituting an amount of $4,731 for the amount of $3,081.