Hutcheson v KELARIS Pty Ltd (ACN 009 323 095) as trustee for the HSS Unit Trust trading as Harman Settlement Service

[2002] WADC 249

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   HUTCHESON & ANOR -v- KELARIS PTY LTD (ACN 009 323 095) as trustee for THE HSS UNIT TRUST trading as HARMAN SETTLEMENT SERVICE [2002] WADC 249

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   21 NOVEMBER 2002

DELIVERED          :   3 DECEMBER 2002

FILE NO/S:   CIV 2807 of 1998

BETWEEN:   ALAN JOHN HUTCHESON

JOAN HUTCHESON
Plaintiffs

AND

KELARIS PTY LTD (ACN 009 323 095) as trustee for THE HSS UNIT TRUST trading as HARMAN SETTLEMENT SERVICE
Defendant

Catchwords:

Practice and procedure - Western Australia - Taxation of costs - Objections - Turns on its own facts

Legislation:

Nil

Result:

Objections disallowed

Representation:

Counsel:

Plaintiffs:     Ms J Pinnington

Defendant:     Mr C McIntosh

Solicitors:

Plaintiffs:     Lawton Gillon

Defendant:     Craig McIntosh

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

Nil

Case(s) also cited:

Nil

1. DEPUTY REGISTRAR HEWITT:  On 24 September 2002 I dealt with the plaintiff's bill of costs for taxation file pursuant to the judgment of this Court on 23 May 2002.  Objection to two items within that bill has been taken by the defendant by letter dated 8 October 2002.

2. The first objection concerns item 13 of the bill which is getting up case for trial which was claimed at $27,000 and was allowed at $16,000.

3. In essence the objections complain that the amount in issue was small (the judgment was $16,000) and the case was not a complex or difficult one and only occupied approximately two days of Court time at trial.  On that basis it is argued that the allowance of $16,000 is so excessive as to amount to an error in principle.

4. In response the plaintiff says that the matter was in fact of some considerable difficulty involving complicated issues and the level of difficulty impressed the Judge sufficiently to decide that it was appropriate for the costs to be awarded on the District Court scale, notwithstanding the fact that the judgment fell below the $25,000 threshold for the Local Court and would have otherwise attracted costs on the Local Court scale.

5. It is also the contention of the plaintiff that the task of getting up case occupied at least 100 hours of solicitor's time.

6. As is always the case in these matters, the reality lies between the two extremes.  The matter was in my view a relatively complicated case and it was relatively difficult to present and hard fought by the defendant every inch of the way.

7. At the taxation I determined that the amount claimed by the plaintiff was considerably in excess of a reasonable allowance and that although a significant amount of time had been spent preparing the case, which would ordinarily have attracted a higher award, in my view the case should not have occupied as much time as it did and a reduction was called for.

8. Nothing has been presented before me in my review of this taxation to persuade me otherwise.  For that reason I take the view that although the original claim for $27,000 getting up case was excessive, a deduction of $11,000 and an allowance of $16,000 was appropriate given the various aspects of the case.  Item 13 getting up case for trial will therefore be allowed in the sum of $16,000.

9. The next matter challenged is an allowance of $468 for a pre trial conference.  On that day the solicitors for the defendant failed to attend the pre trial conference and it is on that basis that it is said that the claim is excessive.

10. That contention it seems to me is not sustainable in light of the fact that the solicitor who attended on behalf of the plaintiff was occupied at the Court for approximately 1.7 hours and the matter did go before a Registrar and orders were made.

11. I find it a little odd that a defendant which did not trouble to attend the pre trial conference even after being telephoned by the Court should consider it appropriate to challenge the allowance awarded for the plaintiff when that allowance is purely based on the time taken and an hourly rate for the solicitor attending.  Accordingly, I am not inclined to disturb my allowance for item 24 and the allowance for the attendance on 19 November 2001 will remain at $468.  I fix the costs of these objections at $200 to be added to the taxed sum.  The bill of costs will therefore be certified in the sum of $29,171.  I shall sign my certificate in that sum on the issue of these reasons and I allow the defendants 14 days from the date of issue of the reasons within which to appeal my decision.