Long v Fleming

[2004] WADC 241

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   LONG -v- FLEMING & ANOR [2004] WADC 241

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   25 NOVEMBER 2004

DELIVERED          :   1 DECEMBER 2004

FILE NO/S:   CIV 3363 of 2000

BETWEEN:   CARYN JOANNE LONG

Plaintiff

AND

JAY DOUGLAS FLEMING
First Defendant

ALAN REED
Second Defendant

Catchwords:

Practice - Western Australia - Review of taxation - Application of the principle in Calderbank

Legislation:

Nil

Result:

Further deductions made to the bill
Defendants costs of the taxation awarded and deducted from the total

Representation:

Counsel:

Plaintiff:     Mr M Rogers

First Defendant             :     Ms L Rafferty

Second Defendant         :     Ms L Rafferty

Solicitors:

Plaintiff:     Michael Rogers & Associates

First Defendant             :     Greenland Brooksby

Second Defendant         :     Greenland Brooksby

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

Calderbank v Calderbank [1976] FAM 93

Eastland Technology Australia Pty Ltd & Ors v Whisson & Ors [2002] WASC 150

Hendrika Misiani (As Executor of the will of Alfredo Antonio Misiani – (Dec)) v Welshpool Engineering Pty Ltd 008669421 (In Liq) [2003] WASC 263 (S)

Case(s) also cited:

Nil

1. DEPUTY REGISTRAR HEWITT:  In this matter I earlier gave a decision on a review of taxation and am now called upon to make determinations which flow from that review. At the date of the review I concluded that I had allowed an excessive amount for "getting up costs for trial" and as a consequence deducted a further $2,000 from the plaintiff's bill. As a result of that further deduction the defendants have brought to my attention the fact that on the 2 of October 2003 they made an offer for $15,000 plus disbursements to satisfy the plaintiff's entitlement to costs.

2. After disallowing a further $2,000, the amount allowed on the bill was $13,416 (excluding for the purposes of this calculation amounts allowed for drawing the bill of costs, taxing the bill and disbursements), an amount which is substantially below the offer which was made. The principle contained in the case of Calderbank v Calderbank [1976] FAM 93 has long been held to be applicable in this jurisdiction and recent cases of the application of that principle are to be found in Hendrika Misiani (As Executor of the will of Alfredo Antonio Misiani – (Dec)) v Welshpool Engineering Pty Ltd008669421 (In Liq) [2003] WASC 263 (S) and also Eastland Technology Australia Pty Ltd & Ors v Whisson & Ors [2002] WASC 150.

3. The basis of the philosophy contained in Calderbank (supra) and adopted by the Courts in Western Australia is that the party who receives and rejects a reasonable offer to settle a claim for costs proceeds to taxation at his risk. The general rule, although it can be displaced in particular circumstances, is that a party who rejects a reasonable offer and fails to equal or exceed that offer at the taxation should lose the costs associated with the taxation and pay the other party's costs of attending the taxation.

4. The present case is somewhat different to the usual because at the original taxation the plaintiff received a allowance which I now know was slightly above the Calderbank offer but upon the review the amount was reduced to the figure I have earlier mentioned.

5. I am not aware of any authority which would guide me in the exercise of my discretion in the circumstances of this case. I see no reason to distinguish between a result achieved by way of objection and review to that which is achieved by way of taxation at the first instance. Accordingly, I believe that the Calderbank principle should apply in the present case and I do apply it.

6. The consequences of the application of the principle in the present case is that there will be further deducted from the bill the sum of $650 allowed for drawing and serving the bill of costs, the sum of $450 allowed for attending the taxation of costs and the sum of $527.78 being the taxing fee and filing fee on the bill. The net result is that the bill at first instance will be allowed at $1,4011.50. Additionally, to that position the defendant seeks the costs of the objection of $1,200 and of the attendance at the taxation at $450. Since the defendant succeeded on the objections I consider that I should make an allowance for those costs but I consider the sum of $1,200 to be more than a reasonable allowance and those amounts shall be allowed at $800. The claim for the costs of the taxation at $450 matches that which was allowed to the plaintiff when the bill was earlier dealt with and that figure will be adopted as a reasonable measure of the defendants costs of attending the taxation. The bottom line will therefore be that there will be a further $1,250 deducted from the bill and that the bill will be allowed at $12,761.50.

7. Subsequent to the original taxation the plaintiff filed a claim for further disbursements which were not included in the original bill and by a letter dated 24 November 2004 the plaintiff indicated that it would accept reimbursement of two amounts, those being $1,970.74 and $102.07. The defendant at the hearing before me indicated that it accepted a responsibility to pay those amounts and would pay those amounts and as a consequence I do not find it necessary to further deal with that additional matter save to say that in the event that the amounts are not paid by the defendant I will reopen the taxation in order to adjudicate those issues. The bill will therefore be signed in the sum of $12,761.20 on the date of issue of these reasons. The plaintiff will be given 28 days within which to appeal from this decision and my previous decision.