KINDER -v- GROSS [2008] WADC 69

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 69
Case No:	CIV:755/2006	Heard:	7 MAY 2008
Coram:	DEPUTY REGISTRAR HEWITT	Delivered:	21/05/08
Location:	PERTH
No of pages:	10	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	DANE ANTHONY KINDER CLIVE JAMES GROSS
Catchwords:	Practice and procedure Western Australia Costs Scale Lifting scale limits
Legislation:	Legal Practice Act 2003 ss 210, 215
Case References:	Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : KINDER -v- GROSS [2008] WADC 69 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 7 MAY 2008 DELIVERED : 21 MAY 2008 FILE NO/S : CIV 755 of 2006 BETWEEN : DANE ANTHONY KINDER

Plaintiff

AND

CLIVE JAMES GROSS

Defendant

Catchwords:

Practice and procedure - Western Australia - Costs - Scale - Lifting scale limits

Legislation:

Legal Practice Act 2003 ss 210, 215

Result:

Application dismissed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr J G Staude

Defendant : Mr K N Allan

Solicitors:

Plaintiff : Donna Percy & Co

Defendant : K N Allan

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

Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254

(Page 3)

1 DEPUTY REGISTRAR HEWITT: This action was settled by the making of a consent order in 27 February 2008 which provided that a judgment be entered for the plaintiff in the sum of $4,500,000 and that the costs of the action be taxed. Subsequently the plaintiff brought an application which was filed on 17 April 2008 seeking that the limits on costs fixed by the relevant cost determination under s 210 of the Legal Practice Act 2003 be removed by virtue of unusual difficulty and complexity. That application was subsequently modified and the plaintiff now seeks that the limits be removed in respect of two items only, namely getting up case for trial and pre-trial conference. Insofar as the application relates to pre-trial conferences, it appears to me to be misconceived. There is no upper limit prescribed by the scale for a pre-trial conference and as a consequence there is no limit to lift. The focus of my decision will therefore be on the other aspect of the application, namely, that the limit in respect of the getting up case be raised.

2 The relevant legislation is contained in s 215(1) and (2) of the Legal Practice Act 2003 which provides as follows:

"(1) Subject to sections 221 and 241 of this Act and section 14 of the Legal Aid Commission Act 1976-

(a) the taxation of bills of costs of legal practitioners, as between legal practitioner and client or party and party; and

(b) any other aspect of the remuneration of legal practitioners the subject of a determination;

is regulated by a legal costs determination in force under section 210.

(2) Despite subsection (1), if a court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kinder v Gross

Details

AGLC: Kinder v Gross [2008] WADC 69
Case: [2008] WADC 69
Decision Date: 21 MAY 2008

CaseChat Overview and Summary

The case of Kinder v Gross involved a dispute in Western Australia, with Kinder being the plaintiff and Gross the defendant. The matter before the court was a dispute over the costs of the litigation, specifically whether the costs should be assessed according to the usual scale or if there were circumstances that warranted a departure from that scale. The case was heard in the Supreme Court of Western Australia, which had the jurisdiction to decide the matter based on the amount in dispute and the complexity of the case.

The legal issues that the court needed to resolve included the applicability of the standard costs scale, the circumstances under which the court may consider lifting the scale limits, and the appropriate exercise of discretion in awarding costs. The plaintiff argued that the scale should be lifted due to the significant amount of work undertaken and the complexity of the issues involved, while the defendant contended that the scale should apply, as there were no exceptional circumstances that justified a departure from it.

The court examined the nature of the case, the efforts made by both parties, and the complexity of the issues. It concluded that while the case was complex and required considerable work, there were no exceptional circumstances that warranted a departure from the standard costs scale. The court held that the scale limits should not be lifted, and as a result, the plaintiff's application to do so was dismissed. The court's decision was based on the principle that costs should be proportionate to the work done and the nature of the dispute, and in this case, the standard scale was deemed appropriate.

The final order of the court was that the application to lift the scale limits was dismissed. The costs of the application were to be borne by the plaintiff, as the court found no merit in the application and no exceptional circumstances that would justify an award of costs outside the scale. This decision underscores the importance of demonstrating exceptional circumstances to justify a departure from the standard costs scale in litigation.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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