Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Mallesons Stephen Jaques [No 2]
[2014] WASC 60 (S)
•30 APRIL 2014
HUNTINGDALE VILLAGE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) -v- MALLESONS STEPHEN JAQUES [No 2] [2014] WASC 60 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 60 (S) | |
| Case No: | CIV:1791/2012 | 13 MARCH 2014 | |
| Coram: | LE MIERE J | 30/04/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiffs should pay the second defendants' costs fixed in the sum of $3,685 forthwith | ||
| B | |||
| PDF Version |
| Parties: | HUNTINGDALE VILLAGE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) SILKCHIME PTY LTD (RECEIVERS AND MANAGERS APPOINTED) VANNIN PTY LTD (RECEIVERS AND MANAGERS APPOINTED) WARWICK ENTERTAINMENT CENTRE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) PARAGON APARTMENTS LTD (RECEIVERS AND MANAGERS APPOINTED) HUNTINGDALE VILLAGE PTY LTD NORMAN PHILLIP CAREY MALLESONS STEPHEN JAQUES MARK ANTHONY KORDA and DAVID JOHN WINTERBOTTOM as Receivers and Managers of Huntingdale Village Pty Ltd (Receivers and Managers Appointed), Silkchime Pty Ltd (Receivers and Managers Appointed), Vannin Pty Ltd (Receivers and Managers Appointed), Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed), Paragon Apartments Ltd (Receivers and Managers Appointed) |
Catchwords: | Costs No apportionment of costs of issues Costs should be fixed Turns on own facts |
Legislation: | Legal Profession Act 2008 (WA), s 295 |
Case References: | Amaca Pty Ltd v Hannell [2007] WASCA 158 (S) Huntingdale Village Pty Ltd v Mallesons Stephen Jaques [No 2] [2014] WASC 60 Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
Order 58 r 11 of the Rules of the Supreme Court 1971 (WA)
- SILKCHIME PTY LTD (RECEIVERS AND MANAGERS APPOINTED)
VANNIN PTY LTD (RECEIVERS AND MANAGERS APPOINTED)
WARWICK ENTERTAINMENT CENTRE PTY LTD (RECEIVERS AND MANAGERS APPOINTED)
PARAGON APARTMENTS LTD (RECEIVERS AND MANAGERS APPOINTED)
HUNTINGDALE VILLAGE PTY LTD
First Plaintiffs
NORMAN PHILLIP CAREY
Second Plaintiff
AND
MALLESONS STEPHEN JAQUES
First Defendant
MARK ANTHONY KORDA and DAVID JOHN WINTERBOTTOM as Receivers and Managers of Huntingdale Village Pty Ltd (Receivers and Managers Appointed), Silkchime Pty Ltd (Receivers and Managers Appointed), Vannin Pty Ltd (Receivers and Managers Appointed), Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed), Paragon Apartments Ltd (Receivers and Managers Appointed)
Second Defendants
Catchwords:
Costs - No apportionment of costs of issues - Costs should be fixed - Turns on own facts
Legislation:
Legal Profession Act 2008 (WA), s 295
Result:
Plaintiffs should pay the second defendants' costs fixed in the sum of $3,685 forthwith
Category: B
Representation:
Counsel:
First Plaintiffs : Mr A Metaxas
Second Plaintiff : Mr A Metaxas
First Defendant : No appearance
Second Defendants : Mr J A Thomson SC
Solicitors:
First Plaintiffs : Metaxas & Hager
Second Plaintiff : Metaxas & Hager
First Defendant : No appearance
Second Defendants : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Hannell [2007] WASCA 158 (S)
Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Mallesons Stephen Jaques [No 2] [2014] WASC 60
Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481
1 LE MIERE J: The second defendants, who I will refer to as the Receivers, are the receivers and managers of each of the plaintiff companies. In this action the plaintiff companies seek declarations that they are 'third party payers' as defined in s 295 of the Legal Profession Act 2008 (WA) (LPA) in relation to bills of legal costs rendered by the first defendants, Mallesons Stephen Jaques (Mallesons), to the Receivers as receivers and managers of the plaintiff companies in proceeding COR 147 of 2010 in this court, and that Mallesons is required to submit the bills for assessment to a taxing officer in accordance with LPA s 295(3). The Receives applied to stay this action until the resolution of proceeding COR 223 of 2009 in this court. On 5 March 2014 I determined that this proceeding should be stayed until the final determination of COR 223 of 2009 or further order: Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Mallesons Stephen Jaques [No 2] [2014] WASC 60.
2 The Receivers say that they were the successful party to the application and the general rule that the successful party recover their costs should apply. Further, the Receivers say that the costs of the application, and of the application in relation to costs, should be taxed. The plaintiffs say that the stay was granted for reasons relating to case flow management and not for the reasons submitted by the Receivers. The plaintiffs say that the costs of the application should be fixed and should be costs in the cause.
General rules as to costs
3 The general rule is that a successful applicant recovers their costs. Ordinarily this is a just outcome because a respondent who turns out to have unjustifiably given the applicant cause to have recourse to the court to obtain the order should be required to recompense that party its costs. Deciding what amounts to success is not always revealed merely by reading the orders of the court. The court will have regard to the outcome in the context of the application and the argument. Where a party, though generally successful in an application has, by the introduction of some issues on which he has failed, increased the costs, the court may order such party to pay the costs of such issues. The power to adjust an order for costs by reference to particular issues upon which the generally successful party has failed is properly exercised only where there are discrete and severable issues upon which the generally successful party has failed, and which have added to the cost of the proceedings in a significant and readily discernible way: Amaca Pty Ltd v Hannell [2007] WASCA 158 (S) [7].
4 In the ordinary case, it is both appropriate and desirable that a costs question be decided at the conclusion of argument. Rarely will it be necessary for a judge to give detailed reasons for decision adverting to every matter debated in argument: Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481 [12]. In this case the question of costs was not argued and decided when reasons for judgment were handed down. The plaintiffs sought an opportunity to put on written submissions. The Receivers responded with written submissions. I have considered the written submissions of the parties but, in the circumstances, I do not intend to address all of the arguments canvassed by the parties.
Plaintiffs should pay the Receivers' costs
5 The Receivers were successful in obtaining the order that they sought, that is an order that the action be stayed. There is no sufficient reason for depriving them of their costs.
No apportionment of costs of issues
6 The Receivers' application was not successful on the grounds advanced by the Receivers under the heading 'Basis for stay application' in their written submissions. The application was supported by an affidavit of Russell Harry Morgan sworn 13 June 2013 which attached various documents relating to COR 223 of 2009. The affidavit was not referred to in the reasons for decision. Those are matters relevant to the quantum of costs but they are not a sufficient reason for depriving the Receivers of their costs or ordering that the costs of any issues be the plaintiffs.
Costs - should costs be fixed
7 Practice Direction 4.7.1 provides that as a general rule, where an order for costs is to be made against a party in interlocutory proceedings, the costs will be fixed and ordered to be paid forthwith or by a particular date. The plaintiffs say that the general rule referred to in the Practice Direction should be followed and the costs should be fixed. The Receivers say that the costs should not be fixed because the application was more complex than the type of case provided by the schedule to the Practice Direction and therefore the schedule should not apply, the schedule to the Practice Direction is not appropriate and the court does not have sufficient material for it to be confident that it can arrive at an appropriate sum. The Receivers referred to a number of factors relevant to the exercise of the courts' discretion and to the relevance and necessity for the Morgan affidavit.
8 I have considered the nature of the application, the evidence reasonably necessary to prosecute it, the argument and the reasons for decision. Having regard to all of the circumstances I find that this is an appropriate case for exercising my discretion to fix the costs and order that they be paid forthwith.
Amount of costs
9 I am satisfied that it is appropriate to fix costs in accordance with the schedule to Practice Direction 4.7.1 notwithstanding the factors referred to and submissions made by the Receivers to the contrary.
10 The schedule of standard costs orders for interlocutory applications attached to the Practice Direction suggests figures calculated by reference to the time required in a typical, or median instance. The Practice Direction says that the court will fix costs in a lower sum in a simple matter, or adjust the amount upward (or order costs to be taxed) for unusually heavy matters. I consider that the application is a sufficiently heavy matter to allow for the maximum amount under the schedule but not so heavy as to make it appropriate for the costs to be taxed.
11 The applicable items and amounts in relation to the application and the further submissions in relation to costs, by reference to the schedule, are as follows:
|
| $429 |
|
| $319 |
|
| $1,892 |
|
| $583 |
|
| $462 |
| $3,685 |
Order
12 The order will be: The plaintiffs pay the second defendants' costs fixed in the sum of $3,685 forthwith.
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