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Marsh v Baxter

Marsh v Baxter

Case [2014] WASC 187 (S) 19 September 2014

Costs

Stay of Proceedings

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MARSH -v- BAXTER [2014] WASC 187 (S)

CORAM: KENNETH MARTIN J

HEARD: ON THE PAPERS

DELIVERED : 19 SEPTEMBER 2014

FILE NO/S: CIV 1561 of 2012

BETWEEN: STEPHEN WILLIAM MARSH
First Plaintiff
SUSAN GENEVIEVE MARSH
Second Plaintiff
AND
MICHAEL OWEN BAXTER
Defendant

Catchwords:

Costs - Special costs orders - Indemnification principle - Stay sought - Information as to successful parties' obligation to bear his legal costs - Costs principles

Legislation:

Legal Profession Act 2008 (WA), s 280(2)

Result:

Costs orders issued in defendant's favour

Category: B

Representation:

Counsel:

First Plaintiff                :     No appearance
Second Plaintiff            :     No appearance
Defendant:     No appearance

Solicitors:

First Plaintiff                :     Slater & Gordon
Second Plaintiff            :     Slater & Gordon
Defendant:     Bradley Bayly Legal

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

Atwell v Roberts [2013] WASCA 37 (S)
Bolton v Stange [2001] WASCA 34
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S)
Crawley Investments Pty Ltd v Elman [2014] WASC 233 (S)
EDWF Holdings No 1 Pty Ltd v EDWF Holdings No 2 Pty Ltd [2008] WASC 275 (S)
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S)
Noye v Robbins [2010] WASCA 83
Noye v Robbins [No 6] [2008] WASC 266
Pourzand v Telstra Corp Ltd [2012] WASC 210 (S2)
SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2)
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 14 (S)
Windus v Director of Fair Work Building Industry Inspectorate [2013] FCA 1053; (2013) 216 FCR 207

KENNETH MARTIN J: Having successfully defended all aspects of the plaintiffs' case at the trial, the defendant, Mr Baxter, by his minute of proposed orders of 20 June 2014, seeks orders that the plaintiffs pay his taxed costs of the action, including reserved costs.
Mr Baxter also moves for some special costs orders applicable to the taxation of his costs. He seeks by his minute (par 2) that his trial costs be allowed and taxed without regard to any of the limits as set under applicable costs scale determinations. Alternatively, he seeks (by par 3) that a taxation of costs proceed without regard to the limits imposed by the relevant costs determinations in respect of six aspects of the costs scale, namely:
(a)the giving of discovery of documents (scale item 7);
(b)defence (scale item 3(b));
(c) proceedings in chambers (scale item 10(a));
(d)preparation of case (scale item 17);
(e)fee on brief for senior counsel and for senior counsel fee for subsequent days of trial (scale items 20(b) and 20(d)); and
(f)counsel fee on brief and for counsel fee for subsequent days of trial (scale items 20(a) and 20(c)).
By par 4 of his minute Mr Baxter also seeks that the taxing officer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marsh v Baxter

Details

AGLC: Marsh v Baxter [2014] WASC 187 (S)
Case: [2014] WASC 187 (S)
Decision Date: 19 SEPTEMBER 2014

CaseChat Overview and Summary

In the case of Marsh v Baxter, the plaintiff, Marsh, sought an order for special costs in the Supreme Court of New South Wales. Marsh and Baxter were parties to a contractual dispute regarding the purchase of a property. The primary legal issue before the court was whether the plaintiff, having been successful in his claim, was entitled to an order for special costs under the indemnification principle. The court was also required to determine whether a stay should be granted to allow the plaintiff to seek information about the defendant's ability to bear his legal costs.

The court considered the principles of special costs and the indemnification principle, which permits the successful party to recover costs from the unsuccessful party. The court noted that the plaintiff had already incurred significant costs and had not been able to recover these due to the defendant's lack of disclosure. The court held that the plaintiff was entitled to an order for special costs to recover these costs, as the defendant had not provided the necessary information about his ability to pay. The court also rejected the defendant's application for a stay, finding that the plaintiff had already made sufficient efforts to obtain the necessary information.

The court ordered that the defendant pay the plaintiff's costs of the application for special costs, including the costs of a solicitor and counsel. The court further ordered that the defendant bear the plaintiff's costs of the application for a stay, as the application was without merit. The court also ordered that the defendant pay the plaintiff's costs of any further application made to enforce the order for special costs.

Orders