Javelin Asset Management Pty Ltd v Wilson [No 2]

[2015] WADC 31

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   JAVELIN ASSET MANAGEMENT PTY LTD -v- WILSON [No 2] [2015] WADC 31

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   ON THE PAPERS

DELIVERED          :   24 MARCH 2015

FILE NO/S:   CIV 2254 of 2012

BETWEEN:   JAVELIN ASSET MANAGEMENT PTY LTD

Plaintiff

AND

BRETT WILSON
First Defendant

CAROLYN WILSON
Second Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation - Order 66 rule 53 of the Rules of the Supreme Court

Legislation:

Nil

Result:

Objections not sustained

Representation:

Counsel:

Plaintiff:     Mr M Curwood

First Defendant            :     Mr D R Chandler

Second Defendant        :     Mr D R Chandler

Solicitors:

Plaintiff:     Price Sierakowski

First Defendant            :     D C Legal Pty Ltd

Second Defendant        :     D C Legal Pty Ltd

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

1. DEPUTY REGISTRAR HARMAN:  On 9 February 2015 the plaintiff's bill of costs was taxed and the parties were given until 4.00 pm on 17 February 2015 to object.  The defendants have so objected.

2. The scope for review of taxation is provided by O 66 r 53(1) as follows:

   A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item or any part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation finally dealing with that item is signed …

3. At taxation there was no disallowance of any item or any part of any item claimed but the amounts claimed for most items were reduced in the process of recording determinations of quantum.

4. On 7 November 2014 her Honour dealt with two applications, one for further and better discovery upon which the relevant paragraph of the order made is:

   3.The defendants pay the costs of this application to the plaintiff forthwith to be taxed if not agreed.

5. The second was for summary dismissal of proceedings and the particular paragraph of the relevant order is:

   5.The defendants pay the plaintiff's cost of the defendant's application, including reserved costs, to be taxed.

6. By the terms of their notice, the defendants raise two objections.  The first they specify as follows:

   (a)At no time during the hearing on 7/11/2014 before Judge Schoombee did the plaintiff seek costs in relation to their application for further and better discovery.

   (b)At no time did Judge Schoombee award costs to the plaintiff in relation to their application for further and better discovery.

   (c)Any orders made by Judge Schoombee in relation to the plaintiff's application were made in reference to the amended scope of discovery, therefore the plaintiff's perceived success was attributable only to late amendment not to the original application.

7. Thereafter follow particulars and conclusions.

8. The second puts the proposition that the costs of the defendants' application for judgment be taxed at the conclusion of the proceedings.  Particular features of that objection include that for costs to be taxed at an earlier time does not allow for an assessment of the overall justice of the case; that an earlier taxation amounts to a punishment; and the merits of the application.

9. I have no difficulty with the proposition implicit in each objection that each claim ought to have been disallowed.  Accordingly, the objections are within the scope of the rule.

10. As for par 3 of the order I have cited above, there can be no doubt that the plaintiff was entitled to tax the costs forthwith.  Accordingly there is no valid objection.

11. As for par 5, it is open to consider that the words do not provide for immediate taxation.

12. The practice direction that applies to the process of extraction of orders on interlocutory applications allow for insertion of the words 'in any event' in the process of settling and extracting orders that relate to interlocutory proceedings.  Those words are not included in the in the order.  That fact along with the fact that the words 'to be taxed' were included brought me to the conclusion that the plaintiff was entitled to payment of the costs prior to the conclusion of the action.

13. I am satisfied that there is no valid ground to either objection.