| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : JOSHUA CORPORATION PTY LTD -v- WESTERN BROADCASTING SERVICES PTY LTD [2003] WADC 257 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 10 NOVEMBER 2003 DELIVERED : 20 NOVEMBER 2003 FILE NO/S : CIV 2825 of 1995 BETWEEN : JOSHUA CORPORATION PTY LTD Plaintiff
AND
WESTERN BROADCASTING SERVICES PTY LTD
Defendant
Catchwords: Taxation of costs - Effect of Deed of Company Arrangement executed by the plaintiff
Legislation: Nil
Result: Objection dismissed
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Representation:
Counsel:
Plaintiff : Ms J L Abbott
Defendant : Ms C J Black
Solicitors:
Plaintiff : Mossensons
Defendant : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Brash Holdings Ltd v Katile Pty Ltd (1994) 12 ACLC 472
Lam Soon Australia v Molit (No 55) Pty Ltd (1996) 22 ACSR 169
Lofthouse v Commissioner of Taxation [2001] VSC 326
MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 17 ACLC 861
Re William Hockley Ltd [1962] 1 WLR 555
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1 DEPUTY REGISTRAR HEWITT: In this matter the defendant listed its bill of costs for taxation before me on 18 October 2003 and subsequently on 23 October 2003 the plaintiff brought in objections to that taxation.
2 In order to understand the objections it is necessary to appreciate that this action was commenced by a writ which was filed in 1995 and which was concluded upon the success of an application to strike out for want of prosecution which was determined on 15 January 2003. The allegation of the plaintiff is that all or part of the defendant's bill should not be allowed on the basis that the plaintiff had entered into a Deed of Company Arrangement on 18 September 1998. Various effects are said to flow from that Deed and I shall list those propositions in order. 3 Proposition 1: The defendant was a creditor within the meaning of the Corporations Law in respect of any entitlement to costs arising up by order of the Court prior to the relevant date. In the present circumstances there were two orders made in 1995 and a further order made in 1996. It was argued that in respect to the entitlement to costs conferred by those orders the defendant was a creditor whose rights were extinguished by virtue of the Deed. 4 Proposition 2: It is argued by the plaintiff that the Deed of Company Arrangement terminated its entitlement to either continue or discontinue the actions and it cannot be liable for any further costs in the action. 5 Proposition 3: Since the defendant could have applied to strike out the action for want of prosecution before there was a Deed of Company Arrangement it should not be entitled to recover any costs. 6 It appears to be common ground that the defendant was not notified of the Deed of Company Arrangement, was not informed of its rights as a creditor of that Deed nor was it paid any dividend pursuant to the Deed nor received any benefit whatever under the Deed. We therefore have a rather interesting situation in which would appear to be the case that the plaintiff was entitled to continue to have run the case, and if successful recover costs against the defendant, but the defendant lost, on the plaintiffs argument, any entitlement to costs in the action both before and after the Deed was put in place. 7 It seems to me that there may be some merit in some of the arguments advanced by the plaintiff namely that the defendant was a contingent creditor under the terms of the Deed of the company arrangement. I would have thought that the plaintiff, which allowed this
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action to remain on foot for a further four or so years without informing the Court or the defendant of the fact that it had executed a Deed of Company Arrangement might operate as a waiver of its ability to raise that Deed in defence of the defendant's claim to costs. 8 I would have thought however a more fundamental problem stands in the plaintiff's way and that arises from the form of the order itself. 9 It was to be noted that neither the defendant nor the Court was ever informed that a Deed of Company Arrangement had been executed. As a consequence each proceeded in ignorance of that fact. The terms of the order entitling the defendant to costs were as follows "The plaintiff pay the defendant's costs of the action (including the defendant's costs of the action in the Supreme Court) including any reserved costs to be taxed." 10 It seems to me that order clearly confers a right on the defendant to tax its costs and to be paid those costs. If the plaintiff wanted to run the argument which it now runs, the time to have done so was at the hearing of the strike out application. It is not an appropriate function of a taxing officer to review an order and to make decision based upon his or her view as to the correctness or otherwise of that order. The order is in plain terms, it confers an obvious right to the defendant to tax its costs and it appears to me that the plaintiff's argument cannot succeed in the face of the clear terms of the order which has been made. 11 Accordingly I am of the view that the objections do not have merit and I allow no further deduction to the bill which will be signed upon the date of issue of these reasons. 12 As to the costs of these objections each side has estimated its costs in attending and presenting argument at $900. I think each to be somewhat excessive. In my view an allowance of $600 would be appropriate in the circumstance of the case and I award that sum in favour of the defendant/respondent to these objections, which sum shall be added to the amount allowed on the taxation making the eventual total $6,332.42. |