MAK Industrial Water Solutions Pty Ltd v Doherty [No 3]

The matter before the Supreme Court of Western Australia involved MAK Industrial Water Solutions Pty Ltd (MAK Water) as the plaintiff and Brendan Doherty, B Water Pty Ltd, Michael Hartnett, and Kyle Matthews as defendants. The primary dispute centred on the costs associated with the summary judgment applications brought by Michael Hartnett and Kyle Matthews against MAK Water. MAK Water had initially reserved the costs of the application, which led to extensive submissions and additional costs.

The legal issues before the court included whether MAK Water should pay the costs of the summary judgment applications on an indemnity basis and if there were grounds to reduce the costs payable by reference to specific issues. Additionally, the court needed to determine whether there were exceptional circumstances justifying the lifting of limits on costs as per the Legal Profession Uniform Law Application Act 2022 (WA).

The court found that while the summary judgment applications were successful for Mr Hartnett and Mr Matthews, MAK Water's position was not so 'hopeless' or unreasonable as to warrant indemnity costs. The court acknowledged MAK Water's appropriate concessions during the hearing, which facilitated the efficient determination of the applications. While MAK Water did not accept the Calderbank offers, the court found it was not unreasonable given the incomplete analysis of relevant USB devices at the time. Furthermore, the court determined that the complexity of the matter justified lifting the limits on certain costs, such as counsel fees and hourly rates for counsel and junior practitioners.

The court made specific orders that MAK Water should pay the costs of the counterclaims and summary judgment applications for Mr Hartnett and Mr Matthews, with certain limits on costs lifted to reflect the complexity of the matter. These orders ensure that the costs are assessed and paid forthwith, with the specifics to be determined by the taxing officer.