Larussa v Anna Carr as administratrix of the estate of Giuseppe Larussa
[2016] WASC 332 (S)
•13 JANUARY 2017
LARUSSA -v- ANNA CARR as administratrix of the estate of GIUSEPPE LARUSSA [2016] WASC 332 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 332 (S) | |
| Case No: | CIV:1702/2015 | ON THE PAPERS | |
| Coram: | CHANEY J | 13/01/17 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Costs corders made | ||
| B | |||
| PDF Version |
| Parties: | TONY LARUSSA ANNA CARR as administratrix of the estate of GIUSEPPE LARUSSA ANNA CARR MARIA ANGELINA GENNARINA LARUSSA |
Catchwords: | Costs First defendant successful No new principles |
Legislation: | Nil |
Case References: | Heartlink Ltd v Jones [2007] WASC 254 (S) Larussa v Carr as administratrix of the estate of Giuseppe Larussa [2016] WASC 332 Wainwright v Barrick Gold Australia Ltd [2014] WASCA 15 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ANNA CARR as administratrix of the estate of GIUSEPPE LARUSSA
First Defendant
ANNA CARR
Second Defendant
MARIA ANGELINA GENNARINA LARUSSA
Third Defendant
Catchwords:
Costs - First defendant successful - No new principles
Legislation:
Nil
Result:
Costs corders made
Category: B
Representation:
Counsel:
Plaintiff : Mr D J Garnsworthy
First Defendant : Mr S M Standing
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : Corporate Counsel Lawyers
First Defendant : Friedman Lurie Singh & D'Angelo
Second Defendant : In person
Third Defendant : In person
Case(s) referred to in judgment(s):
Heartlink Ltd v Jones [2007] WASC 254 (S)
Larussa v Carr as administratrix of the estate of Giuseppe Larussa [2016] WASC 332
Wainwright v Barrick Gold Australia Ltd [2014] WASCA 15 (S)
1 CHANEY J: On 14 October 2016 I delivered reasons dismissing the plaintiff's claims in these proceedings: Larussa v Carr as administratrix of the estate of Giuseppe Larussa [2016] WASC 332. The plaintiff's claims were for proof of an allegedly lost will and for removal of the first defendant as administratrix of the deceased's estate in the event that the lost will was not proved. The latter claim was abandoned by the plaintiff at the conclusion of the evidence. The issue which now falls for determination is the question of the appropriate orders for the costs of the litigation.
2 The first defendant seeks the following orders:
(1) The plaintiff do pay the first defendant's costs of the proceedings (including all reserved costs, costs of directions hearings on 21 January 2016 and 21 July 2016 and the costs of written closing submissions) to be taxed if not agreed.
(2) The fees for the first defendant's counsel under item 20(a)(fee on brief), and the allowance for case preparation under item 17 of the relevant Legal Profession (Supreme Court) (Contentious Business) Determination be taxed without regard to the limits on those items.
(3) There be a certificate for the first defendant's costs of transcript.
3 As to the first order sought, the first defendant submits that she was successful in the proceedings in relation to the claims which were pursued by the plaintiff vehemently and in an adversarial manner. The plaintiff submits that there was nothing in the first defendant's conduct of the proceedings which could amount to a disqualifying factor of the nature referred to in O 66 r 1(2) or (3) of the Rules of the Supreme Court 1971.
4 The plaintiff's response to the first order proposed by the first defendant is not altogether clear. It consists of a commentary on various authorities referred to by the first defendant in her written submissions, but accepts that there is no argument that the litigation between the plaintiff and the first defendant was adversarial concerning both the lost will claim and the conflict of interest claim and that the costs issues ought to be decided between party and party, rather than any provision being made for payment of costs out of the estate. It appears, therefore, that the plaintiff accepts that the first defendant is entitled to an order against him for the payment of costs, subject to submissions made by the first defendant concerning the conduct of the first defendant in the way that she gave her evidence.
5 In the primary reasons ([8]), I noted that neither the plaintiff nor the first defendant was a satisfactory witness. The plaintiff, in his submissions on costs, makes reference to a number of passages in the transcript which demonstrate the unresponsive answers by the first defendant to questions put to her during cross-examination and her tendency to embark on lengthy and tangential discourse in response to questions put to her. Although the plaintiff invites the court to have regard to that conduct, the consequence which the plaintiff contends should follow is by no means clear on his submissions.
6 The plaintiff submits that had appropriate responses been given by the first defendant, it is likely much time would have been saved at the hearing and 'less time ought then to have been taken in preparing for trial'.
7 It may be that the first defendant's unresponsive, and at times rambling, answers in cross-examination prolonged the length of that cross-examination. I do not accept that they had any effect on the time taken in preparation for trial. Any increase in the length of the trial by reason of the manner in which the first defendant gave her evidence, in, the context of a bitterly fought five day trial did not, in my view, significantly affect the costs of the action and does not disentitle the first defendant to an order for the payment of her costs of the action. There should be an order in the terms of the first order proposed by the first defendant.
8 The first defendant seeks, by proposed order (2), an uplift in the allowances for fee on brief under item 20(a) and for the preparation for trial under item 17 of the Legal Profession Supreme Court (Contentious Business) Determination.
9 The first defendant submits that a special costs order should be made in relation to those two items by reason that the items are inadequate having regard to the unusual difficulty, complexity or importance of the matter: s 280(2) Legal Profession Act 2008. She submits that there are three reasons why the proceedings were unusually difficult, complex or important being:
(1) there were three entirely discrete causes of action in one proceeding, each of which had its own factual matrix and documentation, giving rise to differing legal and factual issues;
(2) the proceedings were important to the first defendant because they involved, in effect, a challenge to the proprietary of her conduct in the administration of the estate, and if successful would have disrupted related proceedings in relation to a $6 million debt which the first defendant contends is due to the estate from a trust controlled by the plaintiff; and
(3) importance can be inferred from the fact that the plaintiff retained senior counsel and a very experienced junior counsel from interstate to argue the case.
10 The first defendant adduced no evidence as to the amount of time and work involved in relation to item 17 or item 20(a) of the determination. He relies on the observation in Heartlink Ltd v Jones [2007] WASC 254 (S) [15], [20] that an applicant need only satisfy the court that there is a fairly arguable case to be put to a taxing master to the effect that the bill to be taxed could tax out at more than the limit imposed by the costs determination, and that assessment is a matter of impression on the part of the court, rather than detailed evaluation. That approach was confirmed by the Court of Appeal in Wainwright v Barrick Gold Australia Ltd [2014] WASCA 15 (S) [7] - [8].
11 I am not satisfied that this case involved unusual difficulty or complexity. It is correct that several causes of action were pursued, but that is not uncommon in litigation which ultimately goes to trial. Litigation, particularly between private parties, is inherently important to the parties to it, but I am not satisfied in this case that the matter was of such importance as to warrant a departure from the limits of the determinations. As a matter of impression, and in the absence of any evidence as to the amount of work done, I am not satisfied that the bill presented to the taxing officer may tax at an amount greater than that which the limits would impose. In the circumstances, the second order sought by the first defendant should not be made.
12 The first defendant's proposed third order, that there be a certificate for the first defendant's costs of transcript, was not opposed by the plaintiff. There should be an order in those terms.
13 Accordingly, there will be orders that:
(1) the plaintiff do pay the first defendant's costs of the proceedings (including all reserved costs, the costs of directions hearings on 21 January and 21 July 2016 and the costs of written closing submissions) to be taxed if not agreed;
(2) there be a certificate for the first defendant's costs of transcript.
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