| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : LANDTEC PROJECTS CORPORATION PTY LTD -v- SPIERS EARTHWORKS PTY LTD [2009] WADC 198 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 14 DECEMBER 2009 DELIVERED : 18 DECEMBER 2009 FILE NO/S : CIV 495 of 2007 BETWEEN : LANDTEC PROJECTS CORPORATION PTY LTD (ACN 110 704 875) Plaintiff
AND
SPIERS EARTHWORKS PTY LTD (ACN 112 057 977)
Defendant
Catchwords: Practice and Procedure - Taxation of costs - Basis of taxation of application for a means enquiry - Turns on its own facts Legislation: Civil Judgments Enforcement Act 2004
(Page 2)
Result: Bill allowed at $262.50 Representation: Counsel:
Plaintiff : Mr B G Grubb
Defendant : Mr B P Wheatley
Solicitors:
Plaintiff : Arthur Metaxas & Co
Defendant : Mossensons
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 DEPUTY REGISTRAR HEWITT: In this action the plaintiff filed a bill of costs for taxation on 6 January 2009 and that bill was eventually taxed and allowed in the sum of $3,117.75 on 2 September 2009. A demand was made for payment and when payment was not forthcoming the plaintiff filed an application that a means inquiry summons issue. That summons was duly issued and was returnable before a Registrar of the Court on 21 October 2009.
2 In the meantime the defendant paid the sum allowed on the bill of costs and thereafter there proceeded some disagreement between the parties as to the costs relating to the means inquiry. The plaintiff variously sought the fees in respect of the summons which it quantified at $109.50 in a letter dated 16 September 2009 although I note that $44.50 of that total related to a disbursement which had not been incurred namely a service fee. Subsequently the plaintiff quantified the costs at $656.50 and finally in the bill of costs for taxation before me claimed in the vicinity of $1,000. For its part the defendant offered by letter dated 12 October 2009 to pay the $337.50 comprising the scale item for execution of $275 plus a filing fee of $62.50. These discussions took place against the background of the parties executing a minute of consent orders dated 14 October 2009 and filed on 20 October 2009 under the terms of which in par 2 the parties agreed "the judgment debtor (defendant) pay the judgment creditors' (plaintiffs) costs of the application to be taxed." 3 Sadly no agreement was reached and as a consequence the bill was filed and it totals $2,168.50. Included within the bill in addition to the amount of approximately $1,000 I have already mentioned is a charge for the consent order a charge for drawing the bill and a charge for taxing the bill. In total those approximate $1,000. There is in addition the original filing fee of $62.50 and a further filing fee of $128 payable on the bill. 4 Rarely have I seen an instance where the disaffection of the parties and their solicitors with each other has led to such a waste of effort and time. 5 I now turn to the individual items contained within the bill and in doing so I refer to s 10 of the Civil Judgments Enforcement Act2004 which in my view provides the statutory basis upon which costs orders can be made in circumstances such as this. That section is in the following terms: (Page 4)
"The court in which proceedings under this Act are taken in relation to a judgment may make any order as to and incidental to the costs of taking, or the costs in relation to, the proceedings that it could make as to and incidental to costs and civil proceedings before the court." 6 In my view the application for a means inquiry is analogous to a chamber summons and it should be so treated. It therefore follows that it is not appropriate to regard the process as being execution within the meaning of item 28(a) of the costs scale. The task of completing an application for a means inquiry strikes me as being very straight forward and in my view an allowance of $100 would be adequate. Therefore notwithstanding the fact that item 1 of the bill is cast as a claim under item 28(a) of the costs scale I allow it at $100 being the work necessary to prepare a document analogous to a chamber summons. 7 Certain of the correspondence which was entered into between these two parties might be regarded as consultation prior to bringing an application but the bulk of it was not, similarly some of the correspondence related to the striking of an agreement for the purposes of a consent order. 8 There is no mandate that I can see to simply allow the plaintiffs' claim on the basis of $390 per hour for 18 separate actions taken in regard to the matter by way of fax and email and the like. To the extent of that some of what is contained in the second item on the bill can be said to be some level of consultation, I allow $100. By fax dated 12 October 2009 the defendant made an offer which in my view exceeded the plaintiffs' entitlement to the costs of the means inquiry. It follows that there was therefore no need to extract a consent order nor any need to proceed to the drawing of this bill and taxing the bill etc. Of the remaining items of the bill the only allowance which I make is for the fee paid on the application for a means inquiry namely $62.50. It therefore follows that I allow the plaintiffs' bill in the sum of $262.50. In the circumstances there will be no allowance for the filing fee for the bill nor any allowance for the taxation of the bill. 9 I shall allow the parties 21 days after the date of issue of this decision within which to object to the bill. If I receive no objection I will sign the bill in the amounts that I have indicated.
|