Irmayanti v Hollingsworth - [2021] WASC 429

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   IRMAYANTI -v- HOLLINGSWORTH [2021] WASC 429
CORAM:   ALLANSON J
HEARD:   19 NOVEMBER 2021 AND ON THE PAPERS
DELIVERED          :   2 DECEMBER 2021
PUBLISHED           :   2 DECEMBER 2021
FILE NO/S:   CIV 2269 of 2018
BETWEEN:   MARIA BEATRIX IRMAYANTI
Plaintiff

AND

CLAYTON WILLIAM HOLLINGSWORTH
Defendant

Catchwords:

Practice and procedure - Costs - Application for costs wasted by conduct of plaintiff's solicitor - Where affidavit of solicitor filed in support fails to meet reasonable standards - Where solicitor conceded proper for order against him personally

Practice and procedure - Costs - Indemnity costs or solicitor client costs - Where defendant the executor of deceased estate - Where persistent failure by plaintiff to comply with orders causing action to be unreasonably delayed - Where action continued after solicitor aware of events which made relief sought unnecessary and plaintiff invited to discontinue action to save costs - Whether continuing action was unreasonable

Legislation:

Administration Act 1903 (WA), s 45
Rules of the Supreme Court 1971 (WA), O4A r 28, O4A r28(4)

Result:

Costs orders made including orders for costs on a solicitor client basis against plaintiff's solicitor personally

Category: B

Representation:

Counsel:

Plaintiff	:	Mr R Singh
Defendant	:	Mr G B Rogers

Solicitors:

Plaintiff	:	Amasons Legal
Defendant	:	Jackson McDonald

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

Ben-Pelech v Royle [2020] WASCA 168
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122
Huntingdale Village Pty Ltd v Korda [2015] WASCA 101
Pier (WA) Pty Ltd v Jean Maurice Pty Ltd (in Liq) [No 7] [2018] WASC 355
Rahman v Al-Maharmeh (No 2) [2021] NSWCA 151
Re Ellis [2015] WASC 77
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129
Willison v Hollingsworth [2019] WASC 392
Yara Australia Pty Ltd v Oswal [2012] WASCA 264

ALLANSON J:

Introduction

The plaintiff is a minor, born 16 April 2004[1], and acted through his next friend. The plaintiff commenced the action by originating summons on 20 July 2018, for orders under s 45 of the Administration Act 1903 (WA) in relation to questions arising in respect of the administration of the estate of the late Kim Robert Willison.
[1] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 30. The plaintiff brought the proceedings by his next friend, his mother.
The defendant is the executor of the estate. Mr Willison died while living in Bali on 17 April 2011. He left assets in Australia, Indonesia and Singapore. Difficulties arose with various wills signed by the deceased and the executors were uncertain whether the wills were valid in Indonesia or Australia. They were also unsure whether probate should be sought in Indonesia or Australia and how to go about resealing the grant of probate in Singapore. The defendant's solicitors, Jackson McDonald, were instructed to engage an Indonesian law firm. The defendant applied for probate in Western Australia on 5 October 2012.
The plaintiff commenced proceedings in 2017[2] asserting that the defendant failed to act in the best interests of the beneficiaries and breached his fiduciary duty owed to the plaintiff. That action was ongoing when the plaintiff commenced this action.[3]
[2] CIV 3079 of 2017.
[3] The summary of CIV 3079 of 2017 is taken from the decision of the Master in Eugenius Sunny Willison by next friend Maria Beatrix Irmayanti v Clayton William Hollingsworth in his capacity as Executor of the Will of Kim Robert Willison [2019] WASC 392.
The plaintiff's solicitor, Rajbir Singh acted for the plaintiff throughout, taking the file with him as he changed firms and later worked as a sole practitioner. Mr Singh also acted in CIV 3079 of 2017.
From the commencement of the action, the plaintiff delayed its progress by persistently failing to comply with programming orders.
The action has now been dismissed for want of prosecution by operation of O 4A r 28 of the Rules of the Supreme Court 1971 (WA). By O 4A r 28(4), notwithstanding that the case is dismissed, any party to the case may apply for an order for costs and the court may make an order as to costs.
The defendant applied for the costs of the application heard on 24 August 2021 (to remove the case from the inactive cases list), and the costs of the underlying proceedings. On 24 August 2021, I ordered that costs be determined on the papers and scheduled the filing of affidavits and submissions.

The costs application

On 24 September 2021, in accordance with the orders of 24 August 2021, the defendant applied for orders that the plaintiff's solicitor, alternatively the plaintiff, pay the costs incurred by the defendant in relation to the plaintiff’s chamber summons filed 24 August 2021, and the costs incurred by the defendant in relation to the plaintiff’s originating summons filed 20 July 2018. Costs were sought on an indemnity basis, alternatively on a solicitor client basis, alternatively on a party/party basis.
The defendant filed an affidavit of Gregory Brewster Rogers, solicitor for the defendant, sworn 24 September 2021, in support of the application.
The costs application could not be completed on the papers due to the failure of the plaintiff to file anything in accordance with the orders made on 24 August 2021, and the need to give Mr Singh an opportunity to show cause why costs should not be ordered against him personally. At the hearing of the application on 19 November 2021, Mr Singh conceded that he should pay the costs of the chamber summons of 24 August 2021 on a solicitor client basis,[4] and that he should pay the defendant's costs of the underlying action. The remaining issue was whether Mr Singh should pay all or part of those costs on an indemnity or solicitor client basis.
[4] That is, so that the defendant is indemnified for its costs, insofar as they are for a reasonable amount and have been reasonably incurred.
The orders sought by the defendant require a close consideration of the procedural history of this action. It is no longer necessary to determine who should pay the cost of the action and the application for removal from the inactive cases list, or whether there should be an order requiring Mr Singh to pay the costs of either application. It will be apparent from my discussion of the procedural history that I regard the concessions made by Mr Singh as properly made.

Procedural history

In the affidavit of Mr Rogers, sworn 24 September 2021, he attached the correspondence between his firm and Mr Singh from before this action was commenced. The following matters are taken from that affidavit and from the court file. I have set them out in some detail because Mr Singh's course of conduct needs to be addressed.
On 5 July 2018, two weeks before the originating summons was filed, Jackson McDonald sent an email to Mr Singh in which they confirmed their client's position that, as executor, he sought a deed of release from the beneficiaries. The letter stated clearly that the purpose of seeking the deed was to save the estate from the expense of passing accounts. Jackson McDonald further advised that their client had not applied to the court for a ruling on a question of conflict of laws, the deceased having property in Indonesia. There were also questions relating to a loan in Italy. Jackson McDonald advised that if a deed of release was not signed, they had instructions to bring a separate proceeding to apply for directions from the court.[5]
[5] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 9.
The originating summons was filed on 20 July 2018, for orders pursuant to s 45 of the Administration Act:
a.   Whether the Defendant, as executor and trustee of the Estate of Kim Robert Willison (deceased) should not forthwith pay over to the Plaintiff or his solicitors the amount admitted by the Defendant to be in his hands as such trustee, payable to the Plaintiff as beneficiary named in the Will of the deceased of the said Estate;
b.  Whether on the payment and distribution of the Estate by the Defendant as executor and trustee, the Defendant is entitled to demand from the Plaintiff the release and indemnity as drafted by the Defendant’s lawyers, Jackson McDonald;
c.   Whether there is no conflict of laws between the laws of Western Australia and the laws of Indonesia, and if there is any such conflict then whether it should be determined in favour of the laws of Western Australia; and
d.  Whether the Defendant should not pay to the Plaintiff the costs of these proceedings.
On 26 July 2018, Jackson McDonald wrote to Mr Singh, now at Sonraj Legal, to advise him that they had been instructed to bring proceedings for the passing of accounts, and also to apply for a declaration to resolve questions relating to the conflict of law.[6]
[6] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 11.
On 23 August 2018, Jackson McDonald wrote to Mr Singh identifying formal defects in the originating summons and also stating that the relief sought at paragraphs (a) and (b) of the originating summons 'are non‑issues'. It was again made clear that accounts had not been passed, and that the defendant had a right to obtain a discharge by the passing of accounts before distributing the estate.[7]
[7] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 12. And see Re Ellis [2015] WASC 77 [105] - [106] (EM Heenan J).
On 22 January 2019, Jackson McDonald wrote again to Mr Singh, referring to the fact that an affidavit in support of the application had not then been filed, and advising that the other two beneficiaries had executed an irrevocable authority and direction to the defendant to treat Indonesian monies as an asset of the estate. The irrevocable authority avoided the need to determine whether there was a conflict of laws. Jackson McDonald advised that the defendant regarded himself as bound by the authority and direction given by the beneficiaries, and that the defendant would distribute the Indonesian moneys in accordance with the terms of the deceased's will once outstanding issues, including CIV 3079 of 2017, were resolved and all estate costs and liabilities paid.
The letter invited the plaintiff to discontinue the application before further costs were incurred.[8]
[8] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 13.
On 1 March 2019, Jackson McDonald again wrote asking whether the plaintiff was agreeable to dismissing the action and confirmed that the plaintiff was not required to execute a deed of release and indemnity, as the defendant had now passed estate accounts in the Supreme Court.[9] The plaintiff's solicitors had still not filed an affidavit in support of the application.
[9] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 14.
On 7 March 2019, Mr Singh wrote in reply:
We are of the understanding that our client is no longer required to execute any Deed of Release and Indemnity, and hence your client is agreeable to distributing the Estate monies on the basis of the Irrevocable Authorities provided by [the beneficiaries].
We confirm our instructions that our client is agreeable to discontinuing [the action] on the basis that your client distribute the Estate monies immediately. Further, each party bear their own costs…[10]
[10] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 15.
Immediate distribution of the whole estate was not then feasible. The executor needed to retain sufficient funds to meet expenditure, including legal expenses, before the final distribution.
Jackson McDonald wrote on 15 May 2019 in relation to this action, and the related action. With regard to the present action, the solicitors wrote that they had not received the affidavit in support of the application and foreshadowed an application for a springing order.[11] By then the plaintiff had already failed to comply with orders made on 13 December 2018, 28 February 2019, and 4 April 2019 to file the affidavit.
[11] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 16.
A springing order was made on 16 May 2019. The plaintiff did not file an affidavit in support of the summons until 31 May 2019, the last day allowed under the order.
The affidavit was made by Mr Singh. It included two attachments:
(1)RS1, pages 5 to 64, attached correspondence, from 28 June 2017 to 7 December 2017, between the solicitors then acting for the plaintiff and Jackson McDonald, the solicitors for the defendant;
(2)RS2, pages 65 to 174, attached correspondence, from March 2018 to the date of the affidavit, between the new solicitors acting for the plaintiff and the solicitors for the defendant.
The correspondence was not otherwise indexed. The text of the affidavit did not give any explanation of its relevance to the orders sought by the plaintiff. Apart from the attachments, the affidavit set out information by Mr Singh regarding his employment, and a claim that the plaintiff was suffering from financial hardship and poor health. To the extent that the affidavit could be said to support - or be relevant to - the application for orders under the Administration Act, it did so only through the inclusion of some of the correspondence and a chronology that had been prepared by Jackson McDonald and provided to Mr Singh on 7 September 2017.[12]
[12] Affidavit of Rajbir Singh affirmed 31 May 2019, 5 - 25.
The affidavit, in its preparation and content, falls far short of standards to be expected of a competent legal practitioner.
On 26 June 2019, a registrar ordered the plaintiff to file and serve any submissions in support of the application by 18 July 2019.
On 5 August 2019, the Master ordered the plaintiff to file and serve submissions in support of the application by 19 August 2019, or the action would be dismissed and judgment entered for the defendant with costs.[13]
[13] Proceedings in the related action were continuing. At a hearing on 5 August 2019 the Master struck out the plaintiff's statement of claim and gave leave to replead. A substituted statement of claim was lodged on 19 August 2019. The defendant maintained the substituted statement of claim still disclosed no cause of action. The Master upheld that argument and entered judgment against the plaintiff: see Willison v Hollingsworth [2019] WASC 392.
The plaintiff filed submissions on 19 August 2019, contending:
8. In this matter the Defendant has prepared and provided accounts as required. Accounts have already been passed. However, the trustee is insisting on a release and indemnity before he will release the monies to the beneficiaries. In light of the principles, the Defendant must release the monies to the beneficiaries and has no valid legal reason to hold onto the monies.
9. The Plaintiff, before commencing these proceedings had written to the Defendant’s lawyers, Jackson McDonald, on numerous occasions requesting the Defendant release the monies it is holding on trust for the beneficiaries. The Defendant to date refuses to release those monies, inter alia, demanding that all beneficiaries provide him with a release and indemnity.
…
12. The Defendant further maintains a potential conflict of laws of Western Australia and the laws of Indonesia. The Plaintiff maintains there is no such conflict as the will of the deceased was proved in Western Australia thus the laws of Western Australia apply.
It is hard to reconcile that submission with the email Mr Singh sent in March 2019, confirming his understanding that the trustee no longer insisted on a release and indemnity, and his acknowledgment that the issue of conflict of laws had been resolved. The sole matter then in issue between the parties in August 2019 was the costs of these and the related proceedings.
On 12 September 2019, the Master gave summary judgment to the defendant in CIV 3079 of 2017 and made orders adjourning this matter sine die.
On 25 November 2019, an order for indemnity costs was made against the plaintiff in CIV 3079 of 2017.
On 11 December 2019, Mr Singh put forward an offer to settle, including an offer to discontinue this action. One of the terms of the settlement offer was that the plaintiff pay $5,000 by way of costs in the related proceedings in full and final settlement.[14] Mr Singh could not have realistically believed that $5,000 would satisfy the order for indemnity costs.
[14] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 17.
In March 2020, the firm Chapmans was on the record for the plaintiff. On 9 March 2020, in response to correspondence from Jackson McDonald, Chapmans wrote advising that Mr Singh had left the practice on 24 January 2020 and had taken over conduct of the action from close of business that day.[15]
[15] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 18.
On 7 May 2020, Jackson McDonald wrote to Mr Singh advising that Chapmans was still listed as the solicitors on the record for the plaintiff, that they anticipated receiving instructions to send important correspondence to the plaintiff, and asking whether Mr Singh continued to hold instructions to accept service. Jackson McDonald also asked when a notice of change of representation would be filed.[16]
[16] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 19.
Mr Singh replied on 13 May 2020, advising that he still represented the plaintiff and would serve the notice of change of representation shortly.[17]
[17] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 20.
On 3 June 2020, Jackson McDonald again wrote to Mr Singh. By that time the related proceedings had been dismissed with an order for indemnity costs. The letter gave notice that the defendant intended to file an application for summary dismissal of the proceedings.[18] Correspondence continued over the following weeks in which Jackson McDonald pressed the need for the proceedings to be finalised promptly.
[18] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 21.
On 24 June 2020, Jackson McDonald gave notice to Mr Singh that they had instructions apply to have the proceedings summarily dismissed.[19]
[19] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 24.
On 7 July 2020, Jackson McDonald wrote again, including notice of a proposed interim distribution of $25,000 cash to each beneficiary.[20] Jackson McDonald wrote again on 10 July 2020, and on that occasion received a response.[21]
[20] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 26.
[21] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 28.
On 14 July 2020, Jackson McDonald again wrote regarding the failure of Mr Singh to file a notice of change of representation, so that the defendant would have to file it summary dismissal application on Mr Singh's former firm.[22]
[22] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 31.
The notice of change of representation was filed on 15 July 2020.
On 15 July 2020, Mr Singh wrote with an offer to settle costs issues in both matters for the amount of $35,000 payable from the plaintiff's share of the estate monies.[23]
[23] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 32.
On 7 September 2020, Jackson McDonald wrote that they were instructed to reject the offer.[24]
[24] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 35.
On 24 February 2021, Mr Singh wrote to Jackson McDonald, disputing the amount of costs being claimed. He proposed that the present action be discontinued with no order as to costs and inviting a 'genuine' offer to resolve costs in CIV 3079 of 2017.[25]
[25] Affidavit of Gregory Brewster Rogers sworn 24 September 2021, GBR 37.
On 24 February 2021 the Principal Registrar gave notice to the parties that the action was placed on the inactive cases list.

On 16 March 2021, a certificate of taxation was issued in CIV 3079 of 2017 with the defendant' s bill of costs allowed at $82,487.52. Added to the costs of his own representation, it seems unlikely that the plaintiff was receiving any real benefit from his father's bequest to him.
On 24 August 2021, the plaintiff filed a summons, accompanied by a certificate of urgency and affidavit of Mr Singh, for orders that the action be taken off the inactive cases list. I heard, and dismissed, the application that day.
Following my decision, the action was dismissed by operation of O 4A r 28 of the Rules.
The failure to comply with orders regarding the time for procedural steps persisted into the present application for costs.
On 24 August 2021, I made orders for any party seeking to apply for an order for costs to file an affidavit by 24 September 2021 together with a minute of proposed costs orders. Each party was to file submissions as to costs by 15 October 2021.
The defendant filed his affidavit and minute on 24 September 2021. The defendant was late in filing submissions as a result of the failure of the plaintiff to file anything.
On 15 October 2021, the plaintiff's solicitor advised the court by email that he would be filing both the affidavit and submissions by close of business Monday, 18 October 2021. On Tuesday, 19 October 2021, Mr Singh advised the court by telephone that the material would be filed by close of business that Friday. Nothing was filed.
On 27 October 2021, the court advised Mr Singh that a hearing had been listed for 5 November 2021 to enable him to show cause why a costs order should not be made against him personally. On 3 November 2021, Mr Singh requested the court to postpone the hearing due to an unspecified medical condition and asked for a relisting on 12 November 'as I will not be required to attend hospital on that day'. The hearing was adjourned, and Mr Singh was invited to provide evidence of his medical condition in the event it may be relevant to the question of his personal liability to pay costs.
The following week, Mr Singh again requested that the hearing be vacated. On 10 November 2021, the court advised that if he wished the hearing to be again vacated, he should provide medical evidence on affidavit. Mr Singh filed an affidavit and two medical certificates, relating to the period from about 1 November 2021 (and perhaps immediately before), and unfitness for work for the period 10 to 16 November 2021. His failure to comply with the orders for the period from 24 September 2021 through October remained without explanation.
Mr Singh asked for the matter to be adjourned to a date on or after 26 November 2021. On the basis of the medical certificate, the opportunity for Mr Singh to show cause was further adjourned to 19 November 2021. Mr Singh in fact appeared as the legal representative for a party in unrelated proceedings in this court on 16 November 2021, having filed the initiating process the day before, and apparently having been working and taking instructions on 12 November 2021.
On 19 November 2021, I gave Mr Singh a last opportunity to provide written submissions by 26 November 2021. That opportunity followed his concession that he should be held liable for the costs personally, with the only issue to be the basis upon which they were taxed or assessed.
Mr Singh filed an affidavit, affirmed by him on 26 November 2021. The affidavit included, properly indexed, some of the correspondence between Mr Singh and Jackson McDonald from 22 January 2019 to 20 August 2021. In summary, the correspondence shows that from about 1 March 2019 the issue that prevented this action from being discontinued was the extent of the plaintiff's liability for costs.
At the time of filing his affidavit Mr Singh advised, by email, that submissions would be filed and served later that day. No submissions have been received to date.

Costs of the application for removal from the inactive cases list

I will briefly comment on why I accepted the concession that Mr Singh should be liable personally for the costs of the application for removal from the inactive cases list.
The application was brought at the eleventh hour. On 25 August 2021, the case would have been on the inactive cases list for six continuous months after the date on which notice was given.
The affidavit in support of the application was sworn by Mr Singh. It comprised 12 paragraphs. The first five paragraphs repeated (in almost identical words to the affidavit of 31 May 2019) the information about Mr Singh's employment at various firms. The affidavit included a single attachment - 57 pages of correspondence with Jackson McDonald, most of it between 2 March 2018 and 19 December 2019.
The application and supporting evidence were patently deficient. The application was late without explanation, it showed no commitment to advancing the proceedings, and offered no reassurance that the action would not again be permitted to stagnate.

Costs of the underlying action

As I have noted above, Mr Singh conceded that he should personally pay the costs of the action.
The defendant, as executor of the estate, submits that the costs should be paid on either an indemnity or a solicitor own client basis.
The principles which guide consideration of an application for indemnity costs are well known.[26] Two considerations are particularly relevant to the present application. First, it is a sufficient reason to enliven the discretion that a party has persisted in what, on proper consideration, should be seen to be a hopeless case.[27] Second, such an order may be appropriate where some element of improper or at least unreasonable conduct by a party of their legal advisers has been demonstrated.[28]
[26] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10]; YaraAustralia Pty Ltd v Oswal [2012] WASCA 264 [33]; Huntingdale Village Pty Ltd v Korda [2015] WASCA 101 (S) [11] - [17].
[27] Ben-Pelech v Royle [2020] WASCA 168 (S) [7].
[28] Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [9].
The defendant in the present action, being an executor, will be entitled to be completely indemnified from the estate for his costs insofar as they are of a reasonable amount and have been reasonably incurred.

Costs against a legal practitioner

Principles

Following amendment to the Rules in 2001, costs may be awarded against a practitioner pursuant to O 66 r 5:
(1) Where in any proceedings costs are incurred by a party —
(a) as a result of any improper, unreasonable, or negligent act or omission; or
(b) which, in the light of any such act or omission occurring after they were incurred, the Court considers it is unreasonable to expect that party to pay,
the Court may order any practitioner whom it considers to be responsible (whether personally or through a servant or agent) —
(c) to pay those costs personally or to indemnify any party who has been ordered to pay those costs; or
(d) not to claim any relevant costs or fees; or
(e) to refund any relevant costs or fees which may have been paid already.
(2) No order under this rule shall be made against a practitioner unless he has been given a reasonable opportunity to appear before the Court and show cause why the order should not be made, except where any proceeding in court or in chambers cannot conveniently proceed, and fails or is adjourned without useful progress being made —
(a) because of the failure of the practitioner to attend in person or by a proper representative; or
(b) because of the failure of the practitioner to deliver any document for the use of the Court which ought to have been delivered, or to be prepared with any proper evidence or account, or otherwise to proceed.
In Rahman v Al-Maharmeh (No 2), considering the similar provision in s 99 of the Civil Procedure Act 2005 (NSW), Brereton J said:
The jurisdiction to make such orders is to be exercised 'with care and discretion and only in clear cases'. In considering such an application, courts apply a three‐stage approach, asking first, has the legal representative of whom complaint is made acted improperly, unreasonably, or negligently; secondly, if so, did such conduct cause the applicant to incur unnecessary costs; and thirdly, if so, is it in all the circumstances just to order the legal representative to compensate the applicant for the whole or any part of the relevant costs.[29]
[29] Rahman v Al-Maharmeh (No 2) [2021] NSWCA 151 [22].
Kenneth Martin J recently reviewed the authorities on the making of a costs order against a legal practitioner and provided a clear summary of the principles.[30] I refer in particular to the following, with which I agree:
(1)the evidentiary onus to provide a proper basis for making an adverse costs order of this character rests on the moving party at the civil standard;
(2)it is necessary to remember a legal practitioner is well capable of making a wrong decision without thereby being negligent as that term is understood - hindsight should not be used in any evaluation of the legal practitioner's conduct;
(3)the ultimate jurisdiction of a court to issue an adverse wasted costs order remains discretionary even if the existence of improper, unreasonable or negligent conduct as well as the causation of loss is established;
(4)fairness requires that a respondent legal representative who is sought to be made the subject of such an order be very clearly told what they have done wrong and what is claimed against them.
[30] Pier (WA) Pty Ltd v Jean Maurice Pty Ltd (in Liq) [No 7] [2018] WASC 355 [9] - [23].

Findings

It is difficult to assess whether the proceedings were misguided from the start, due to the failure of the plaintiff to file any evidence in support of the application. The action may have been justified if it was brought for the purpose of having the court quickly resolve issues that were holding up the distribution of the estate. The delay in proceeding, however, was inexplicable. The affidavit eventually filed in May 2019 offered no support for the relief claimed.
I am not satisfied that it must have always been apparent to the plaintiff and his legal representatives that the application was misconceived or without substance. 'The court should not be too quick to characterise a case as hopeless ‑ parties should not be discouraged from persisting in an action merely because success is uncertain'.[31]
[31] Ben-Pelech v Royle [7].
In my opinion, the letter from Jackson McDonald of 1 March 2019 is the critical event.
On 22 January 2019, Mr Singh had been advised of the irrevocable authority and direction pursuant to which the defendant would treat the Indonesian monies as an asset of the estate. On 1 March 2019, Mr Singh was advised that the plaintiff was not required to execute a deed of release and indemnity, as the defendant had now passed estate accounts in the Supreme Court. On each occasion the plaintiff was invited to discontinue the action to save costs. The affidavit in support of the originating summons had still not been filed.
To persist in the action from then was unreasonable, and was compounded by:
(1)the continuing delays and failure to comply with orders of the court;
(2)the failure of the affidavit in support of the originating summons, when eventually filed, to meet appropriate standards;
(3)the submissions filed on 19 August 2019.
Because the plaintiff lives in Indonesia, and is a minor, the court must consider what allowance must be made for the difficulties in getting instructions. Mr Singh has not, however, advanced that explanation. The submissions filed on 19 August 2019, purporting to deal with issues that Mr Singh knew had been resolved, could not be explained by difficulties in obtaining instructions.
On the material now before the court, the costs of both parties from 1 March 2019, including the costs of the application for the action to be removed from the inactive cases list, have been occasioned by the unreasonable and negligent conduct of the plaintiff's solicitor.
The two parties who have been harmed by that conduct are a minor in Indonesia, whose inheritance may have been substantially consumed by legal fees, and the estate of the late Mr Willison. The administration of that estate has been delayed and put to unnecessary expense in wasted legal costs. All of the costs from at the latest 1 March 2019 were, in the relevant sense, wasted. It is just that Mr Singh indemnify the defendant for those costs. The court will order that Mr Singh pay the defendant's costs from then personally on a solicitor own client basis, being the basis on which the executor would be entitled to reimbursement of his fees from the estate.
I do not have the information before me about costs claimed or paid to Mr Singh by his client, and I have no application before me in relation to those costs. Despite my misgivings about whether Mr Singh could fairly claim fees for what he has done to date, I am not in a position to make any findings or order about those fees.
The orders will be:
(1)The plaintiff's solicitor, Rajbir Singh, pay the costs incurred by the defendant in relation to the plaintiff’s chamber summons filed 24 August 2021, so that the defendant is completely indemnified for his costs insofar as they are of a reasonable amount and have been reasonably incurred.;
(2)The plaintiff's solicitor, Rajbir Singh, pay the costs incurred by the defendant in relation to the plaintiff’s originating summons filed 20 July 2018 on a party/party basis to 1 March 2019.
(3)The plaintiff's solicitor, Rajbir Singh, pay the costs incurred by the defendant in relation to the plaintiff’s originating summons filed 20 July 2018 from 1 March 2019, including the costs of this application for costs, on a solicitor client basis so that the defendant is completely indemnified for his costs insofar as they are of a reasonable amount and have been reasonably incurred.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
2 DECEMBER 2021