Hillside Vineyards Pty Ltd (in Liquidation) v Dean Liebich Nominees Pty Ltd and Harold Kenneth Lieblich Hillside Vineyards Pty Ltd (in Liquidation) v Dean Liebich Nominees Pty Ltd Nos. SCGRG 92/775 and Scgrg

[1994] SASC 4399

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA ANDERSON J

CWDS
Costs - application by defendants for reconsideration of taxation pursuant to Supreme Court Rules 101.19 and 101.20 due to oversight in office of defendants' solicitors and failure by Court to notify of taxation. Supreme Court Rules 1897 r 101. Winter v McDonald and Weeks (Perry J, 7 December 1988, Judgment No. 1023, unreported) applied.

HRNG ADELAIDE, 20 January 1994 #DATE 10:2:1994
Counsel for plaintiff:     Mr M J Sykes
Solicitors for plaintiff:    Sykes Bidstrup
Counsel for defendants:     Mr N L Strawbridge
Solicitors for defendants: Baker O'Loughlin

ORDER
Both applications refused

JUDGE1 ANDERSON J In each matter the defendant has applied to set aside the allocatur signed by the Deputy Registrar on 14 December, 1993. The defendants seek that the taxation be reconsidered by a Master after objections have been delivered. The applications are brought pursuant to Rule 101.19 and 101.20.

2. The plaintiff became entitled to costs to be taxed in these actions as set out in the order of 31 August, 1993. A fund has been set up to hold the monies from which those costs (in whole or in part) are to be paid.

3. There is no doubt about the history of the taxation. In accordance with Rule 101A.02 short form Bills of Costs were prepared by the plaintiff's solicitors and forwarded to the defendants' solicitors. They were returned to the plaintiff's solicitors on 27 September, 1993 endorsed "not agreed" in relation to every item. Thereafter Mr Sykes, the plaintiff's solicitor, spoke with the defendants' solicitor (but not with Mr Strawbridge who has had the conduct of this matter since its inception) to query whether the whole of every item was in fact not agreed. It is apparent that the endorsements on the short form Bills were a blanket objection. They can only have been endorsed without any proper consideration of the content and disregarding the purpose for which such Bills are required to be delivered by the Rules of Court.

4. Mr Sykes indicated that he would proceed with the preparation of long form Bills of Costs after a short time if he did not hear to the contrary from the defendants' solicitors. He did not hear. The Bills were prepared and filed at Court, endorsed in accordance with Rule 101.09(4) and served upon the defendants' solicitors on 22 November, 1993.

5. Thereafter Action No 775/92 came before me on 10 December, 1993 (Action No 1226/92 having been dismissed by the order of 31 August, 1993). On that day the solicitor for the plaintiff pointed out what I have set out above and that the time within which to file Notices of Dispute according to the Rules (see R101.09(7)) had passed and formal orders were to be sought in relation to those Bills. The defendants were represented at the hearing by Mr Pilkington. He seemed not to be familiar with the matter. It was adjourned to 14 December, 1993. On that day Mr Sykes and Mr Pilkington attended. The matter was adjourned to January 1994. My memory, as no transcript was kept, is in accord with the content of paragraph 11, of Mr Sykes' affidavit sworn 14 January 1994 and filed in opposition to these applications.

6. From the file it is apparent that the taxing fees were paid on 14 December, 1993 and the allocaturs signed that day. Demand for payment was made of the defendants' solicitors on 15 December, 1993.

7. These applications were issued on 22 December, 1993. In support of them Mr Strawbridge relied upon his affidavit sworn 21 December, 1993 and filed with the applications.

8. The defendants want a reconsideration of the taxation although in truth, as no Notices of Dispute were filed, there has not been a formal taxation: R101.09(8). Because of this there was also no advice given to the defendants' solicitors, as Mr Strawbridge submitted, was required by R101.09(5). That subrule only has application where there need be a formal taxation because the requisite notices have been filed in accordance with the Rules. It is not the intention of that subrule that parties who have received a long form Bill of Costs properly endorsed and who then do nothing should be prompted from their inactivity by the Registrar of this Court.

9. These applications rely upon the discretion contained within Rule 101.19(1) in circumstances where the allocatur has already been signed. It is not a reconsideration in the sense contemplated by Rules 101.19 and 101.20 because, as I have said, the Registrar has acted pursuant to Rule 101.09(8). Rather, the defendants seek for time to be turned back and for them to be given leave to do now what they should have done within 14 days of 22 November, 1993.

10. Mr Strawbridge seeks to rely upon his letter of 14 July, 1993 to the plaintiff's solicitors, which is exhibited, in submitting that the terms of paragraph 1 thereof - that any taxation be before a Master, not a Registrar and not be appealed from - were really part of the order made thereafter in chambers.

11. However, a perusal of the transcript of the attendance on 15 July, 1993 makes it quite clear that the rejection of those proposals by the plaintiff's solicitors by letter of that day remained their position. Indeed, on page 22 of the transcript I said in relation to the taxation:
    "HIS HONOUR: ... And that further, the next funds which
    become available to the company from whatever source to a
    limit of $15,000 be put into that fund to abide the
    taxations and to be dealt with as set out in that paragraph
    unless otherwise ordered by the court.
    MR STRAWBRIDGE: Your Honour has mentioned 15,000.
    HIS HONOUR: I have, yes. I mentioned that on purpose.
    MR STRAWBRIDGE: Thank you.
    HIS HONOUR: I might indicate that the taxations in matters
    such as this one go to the Registrar in any event.
    MR STRAWBRIDGE: I wasn't certain so I put in that
    qualification, just in case."

12. There can be no doubt as to what the position was at that time. There was no agreement of any type between the parties as to how the taxations would proceed.

13. Mr Strawbridge submitted that there was no delay in bringing these applications and with that I agree. His affidavit suggests that between 25 and 35 per cent will be taxed off and in those circumstances it was appropriate that the indulgence sought to overcome an internal problem within his firm should be granted. He acknowledges a responsibility to meet any costs thrown away should the applications be granted and time given to file Notices of Dispute.

14. Were that to happen, in my opinion these taxations would proceed as if they were first taxations and would not require to be conducted pursuant to the procedure set out in Rule 101.20.

15. The objection of the plaintiff to these applications relied principally upon the unreported decision of Perry J in Winter and McDonald v Weekes (Judgment No 1023). That was an appeal from an order of a Master refusing an extension of time within which to file a Notice of Dispute and consideration by His Honour of what an application such as that at Bar should contain. At page 4 His Honour said:
    "... It seems to me that they have had every opportunity to
    comply with the rules up to now, and the affidavit filed in
    support of the appeal gives no proper or sufficient explanation
    for the failure to put in a notice of dispute in time.
    Furthermore, there is no evidence before me, either in the
    affidavit supporting the notice of appeal or otherwise, that the
    appellants have serious objections to raise with respect to the
    remainder of the bill. At the very least, if the appellants were
    to be granted the indulgence they seek, one would expect to have a
    clear indication of the specific items which they wish to
    challenge, so that some evaluation could be made of the merits of
    the arguments which they might wish to advance in opposition to
    the taxation of those items and of the amount of money involved."

16. Mr Sykes submitted that there was no proper or adequate explanation of the failure to file the objections within time or at least bring in an application urgently prior to or on 14 December, 1993. They had notice that the long Bills were coming. Those Bills arrived correctly endorsed and nothing happened. In my opinion, having regard to the history of the conduct of this action by the defendants one could not be surprised by such lack of action. There has been a continual series of applications on their behalf for adjournments at every turn. They have received many indulgences in that regard over quite strenuous objections by the plaintiff's solicitors. At every turn the defendants have sought to draw out the conduct of these matters, both in chambers and then by appeals, all of which have failed. This attitude is further evidenced by the reaction to the short form Bills - "agree nothing" - when obviously there were matters which if not able to be agreed as to quantum were proper for an offer to be included in the Bill. Still that was not done and it should have been. That procedure was introduced into the Rules to save time and costs, not to become part of a process of delay where there is no doubt at all that an order for costs will be made. If the Rules are sought to be used for a purpose ulterior to their intent then that course must be adopted with the attendant risks.

17. Where not even the most obvious cost items of the plaintiff were acknowledged as having some entitlement it is too late to subsequently seek the indulgence of the Court when nothing at all happened when further Bills were delivered in accordance with the Rules. This failure by the defendants to adequately explain their behaviour, having regard to the history of both matters is, in my opinion, sufficient to defeat this application.

18. However, that is not all. There is no attempt to particularise the objections to the Bills except as to the broad percentages which I have mentioned. It is not possible therefore to have "some evaluation ... of the merits of the argument" (Perry J) sought to be advanced by the defendants. This is important in matters such as these where there is no doubt as to the defendants' liability for costs and it remains only a question of "how much". In my opinion this omission is also fatal.

19. Each application is refused. The plaintiff is to have its costs to be taxed or agreed.