Ly v Heng Tang and Ly Pheng as trustee for the TROKOUL Tang Family Trust

[2012] WADC 142

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   LY -v- HENG TANG and LY PHENG as trustee for the TROKOUL TANG FAMILY TRUST [2012] WADC 142

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   ON THE PAPERS

DELIVERED          :   28 SEPTEMBER 2012

FILE NO/S:   CIV 3152 of 2011

BETWEEN:   RICHARD SAY LY

SUI MEN LY
Plaintiffs

AND

HENG TANG and LY PHENG as trustee for the TROKOUL TANG FAMILY TRUST
First Defendants

HENG TANG
Second Defendant

LY PHENG
Third Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia- Objection to taxation - Turns on its facts

Legislation:

Nil

Result:

Plaintiffs successful in part. 
Additional $194.75 recovered. 

Representation:

Counsel:

Plaintiffs:     No appearance

First Defendants           :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     No appearance

Solicitors:

Plaintiffs:     Hotchkin Hanly Lawyers

First Defendants           :     Peter Legal

Second Defendant         :     Peter Legal

Third Defendant           :     Peter Legal

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

Altorfer & Stow (a firm) v Lindsay [2005] WASCA 73

1. DEPUTY REGISTRAR HARMAN:  The plaintiffs obtained an order for costs of the action against the second named first defendant and the third defendant.  Their bill of costs was taxed and they have now lodged objection in the following terms:

   1.(W)e object to the Scale applied to the assessment of the whole Bill. The Registrar applied the Magistrate Court scale during the taxation pursuant to O 66 r 17 RSC. However, in determining the scale to be applied, regard is to be given to the relief claimed when the action was commenced. The plaintiff's claimed and reasonably expected to obtain, an order for the provision of a bank guarantee from the Defendants pursuant to clause 24.2 of the parties' lease of shop G24, 160 Central, 160 St Georges Terrace, Perth. This action was commenced in the District Court due to its jurisdiction to grant the order for the bank guarantee (s 50(1)(bb)) of the District Court Act) notwithstanding that the liquidated claim was below the Magistrates Court limit as the Magistrates Court does not have jurisdiction to make the order.  Therefore, the registrar should have applied, and should review the Bill to apply, the District Court scale to this taxation.  We note that this reason to apply the District Court scale was not brought to the Registrar's attention during the taxation.  Notwithstanding this oversight, the Registrar may review the bill on this ground – see Altorfer & Stow (a firm) vLindsay [2005] WASCA 73 …, [55]; and

   2.(W)e object to the registrar's disallowance of item 3 of the bill.  Notwithstanding default judgment costs may not be claimable under item 4 of the District Court Scale we submit the Registrar has the discretion to award, and should have awarded the maximum of $209 for a default judgment costs, pursuant to item 14 of the District Court scale (entry for judgment without trial).

2. In the reasons for decision the Full Court in Altorfer & Stow (a firm) v Lindsay [2005] WASCA 73 [56] stated as follows:

   The approach taken by the Registrar and upheld by the Master was that the taxing officer cannot make an error in principle for the purposes of r 53 unless the issue the subject of the objection had been raised and considered by the taxing officer at the taxation.  There is no justification in the language of r 53 or in principle for such a limitation.  The taxing officer's powers and duties on a taxation continue until he becomes functus officio on the issue of a certificate:  Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 624. An error of principle can be made in allowing or disallowing an item notwithstanding that a material issue of fact or law has not been brought to the taxing officer's attention by the parties. The applicant's objection, filed in accordance with r 53, raised a potential error of principle, in which event the taxing officer was obliged under r 54(1) to reconsider and review his taxation in relation to that objection. However, the Master himself ruled on the substantive question which is now under challenge before this Court and I turn to that matter.

3. It was late in the process of taxing the bill that the plaintiff referred to the quantum of the claim. Upon turning to the writ it was immediately evident that the quantum sought to be recovered was within the jurisdiction of the Magistrates Court. For that reason, having reflected upon r 17 I reconsidered the determinations that had been made as to quantum and made adjustments to what had been determined in order to reflect the Magistrates Court Scale.

4. I imagine that the terms of par (2) of the prayer for relief in the statement of claim were not then drawn to my attention.  It reads as follows:

   An order that the defendants cause the supply of a bank guarantee in the sum of $22,093.26 to the plaintiffs;

   …

5. I accept that such relief would have been beyond the jurisdiction of the Magistrates Court. 

6. The only impact of the error in applying the Magistrates Court Scale was in reducing the claim for the writ by $289.50 rather than $129.50 and for settling and extracting judgment by $438 rather than $408.

7. The other objection relates to item 3 of the bill.  It appeared as follows:

No	Description	Date	Item	Supreme Court Scale	Amount
Item 3	Other pleadings – instructions, drafting default judgment, organising service of default judgment and drafting associated with offer (Junior Practitioner) and settling default judgment and associated offer letter (Senior Partner) and settling letter to court regarding default judgment for liquidated sums (Senior Practitioner)	28 November 2011 – 1 February 2012	4	2010	$1,453.50

1. As I recall, at taxation there was little debate as to whether the activity the subject of the claim was indeed a claim under item 4 of the scale.  The service described in the item was obviously not a pleading.  I have no doubt that I was then aware that the plaintiff had undertaken the particular activity described.  It is the beneficial party that carries the onus at taxation.  Prior to its disallowance the plaintiff had the opportunity to amend.  My reading of the ground of objection is that I should have discerned that it was open to me to consider that an amount ought to be recovered for part of the services described.  At one level I accept that proposition; however I do not consider that any failure on my part to recognise such an opportunity for the plaintiffs to so recover amounts to an error in principle.  I would add that part of the context presented to the plaintiffs included the fact that that they had independently brought the claim to recover the cost of default judgment. 

2. I am not persuaded that there was any error in principle in disallowance of that item.