Holborow v Macdonald Rudder
[2000] WASC 160
•20 JUNE 2000
HOLBOROW & ORS -v- MACDONALD RUDDER [2000] WASC 160
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 160 | |
| Case No: | CIV:2271/1999 | 12 JUNE 2000 | |
| Coram: | WHEELER J | 20/06/00 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiffs ordered to pay defendant's indemnity costs | ||
| PDF Version |
| Parties: | VALERIE HOLBOROW ROBERT BOONA COLIN COSMOS KEVIN COSMOS JANICE COSMOS MARY COSMOS DANNY COOPER DOREEN WESCOMBE MARGARET BOONA BARBARA SINCLAIR GAIL SINCLAIR DORRIE WALLY MACDONALD RUDDER |
Catchwords: | Costs Practice matters Recovery of costs Indemnity costs |
Legislation: | Nil |
Case References: | Australian Guarantee Corp Ltd v De Jager [1984] VR 483 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Holborow & Ors v MacDonald Rudder [2000] WASC 135 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- ROBERT BOONA
COLIN COSMOS
KEVIN COSMOS
JANICE COSMOS
MARY COSMOS
DANNY COOPER
DOREEN WESCOMBE
MARGARET BOONA
BARBARA SINCLAIR
GAIL SINCLAIR
DORRIE WALLY
Plaintiffs
AND
MACDONALD RUDDER
Defendant
Catchwords:
Costs - Practice matters - Recovery of costs - Indemnity costs
(Page 2)
Legislation:
Nil
Result:
Plaintiffs ordered to pay defendant's indemnity costs
Representation:
Counsel:
Plaintiffs : Mr B W Ashdown
Defendant : Mr P A Tottle
Solicitor : Mr A S Stavrianou appearing by leave for Williams & Co
Solicitors:
Plaintiffs : Ilbery Barblett
Defendant : Tottle Christensen
Solicitor : Williams & Co
Case(s) referred to in judgment(s):
Australian Guarantee Corp Ltd v De Jager [1984] VR 483
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Holborow & Ors v MacDonald Rudder [2000] WASC 135
Case(s) also cited:
Nil
(Page 3)
1 WHEELER J: This is an application that the plaintiffs pay the defendant indemnity costs. These reasons are to be read in conjunction with reasons which I delivered on 29 May 2000 (Holborow & Ors v MacDonald Rudder [2000] WASC 135) in relation to the plaintiffs' application for an account by the defendant for all trust property received by the defendant on behalf of the plaintiffs.
2 The application for indemnity costs is made on the basis that, the defendant submits, the plaintiffs' application was brought and continued in circumstances where the plaintiffs, properly advised, should have known that there was no chance of success: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 per Woodwood J.
3 An apparent obstacle to the defendant establishing this proposition is that I did not grant the defendant's application for summary judgment in respect of the plaintiffs' application. However, I refused to grant summary judgment on the basis that there were apparently gaps in the material before me and that a fuller investigation by the then solicitors for the plaintiffs (who had only just taken over the conduct of the matter from the plaintiffs' former solicitors) might result in some basis for the application being revealed. I note, however, that no further materials have been put before me in relation to the application for indemnity costs, and in my view it is therefore appropriate for me to consider that application simply on the basis of the materials which were before me on 28 April 2000 when I heard the plaintiffs' application.
4 In my former reasons of 29 May 2000, I noted that it was on 15 November 1999 that the defendant advised the plaintiffs' former solicitors that bills of costs had been posted to each of the plaintiffs on whose behalf the request for an account was made. In that letter, the defendant suggested that the making of demands in relation to bills which had not even been seen by the plaintiffs' solicitors appeared to them to be unprofessional conduct. I noted also that the correspondence between 16 September and 15 November 1999 suggested that the concern of the plaintiffs was with whether appropriate bills of costs "in a taxable form" had been, or would be, provided. I further noted that it is plain from an affidavit of 16 December 1999, sworn by one of the plaintiffs, that a very large number of detailed bills of costs were then in the possession of the plaintiffs and had apparently been in their possession for some time.
5 The writ issued on 16 November 1999, and the only conclusion which I can draw from the materials before me was that it was a writ
(Page 4)
- which at that time was directed to ensuring that bills of costs were provided by the defendant, in circumstances where detailed bills of costs had in fact been provided by the defendant (covering either all or a substantial portion of the work which the defendant said it had done) and in circumstances where the plaintiffs had either not attempted to locate, or had not attempted to consider, the bills already provided to them by the defendant. The issue of the writ in those circumstances appears to me to have been wholly unreasonable.
6 I note further that in the argument which was before me on 17 November 1999 when the plaintiffs sought to have bills of costs provided to them, the submissions made to me created the impression that only some very few bills had been received from the defendant and that this submission was apparently made in circumstances where there had been either no, or only the most cursory, attempt to ascertain what bills had in fact been provided.
7 I further note that as early as 16 September 1999, trust account statements were made available to the solicitors for the plaintiffs, and they were advised that general account statements were also available for collection and would be "posted tonight if not collected in the meantime". It appears that it is common ground that those general account statements were not in fact posted. However, there is no record of any request from the plaintiffs' then solicitors referring to the general account statements and either inquiring why they had not been posted or seeking to collect them. Again, given that at that time the plaintiffs were apparently seeking an accounting of a very general nature, it appears that the plaintiffs failed to take a most elementary step in not simply reminding the defendants of the offer of general account statements and requesting that they be provided.
8 Finally, I note that the 19 or so matters, which in argument before me on 28 April 2000 the plaintiffs alleged that the defendant should have provided or explained, were matters which were only made known to the defendant's solicitors less than 48 hours prior to that hearing. Prior to that date, it was by no means clear what the plaintiffs' solicitors contended was defective in the accounting which the defendant had by then provided to them. Having regard to the complexity of the matters in respect of which the defendant represented the plaintiffs, and the time span over which that representation extended, it was obviously wholly unreasonable to expect the defendants to be able to respond in respect of those 19 items prior to the hearing before me.
(Page 5)
9 Having reviewed the history of this matter again, it appears to me that this is not merely a case in which the action has been both commenced and continued in circumstances where the plaintiffs, properly advised, should have known that they had no chance of success. It is also one which it is appropriately described as having been "a high-handed presumption" (per Tadgell J Australian Guarantee Corp Ltd v De Jager [1984] VR 483 at 502).
10 I would therefore order that the plaintiffs pay the defendant's costs, to include all costs except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that, subject to the above exceptions, the defendant will be completely indemnified by the plaintiffs for its costs.