Mercanti v Mercanti
[2014] WASC 64 (S)
•1 APRIL 2014
MERCANTI -v- MERCANTI [2014] WASC 64 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 64 (S) | |
| Case No: | CIV:2186/2013 | 12 DECEMBER 2013, 24, 26, 28 FEBRUARY 2014 | |
| Coram: | LE MIERE J | 1/04/14 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | First and second defendants pay the plaintiff's costs of the defendants' application fixed in the sum of $5,500 | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL ANGELO MERCANTI TYRONE KANE MERCANTI PARRADELE PTY LTD SLONDIA NOMINEES PTY LTD CITYCOURT PTY LTD |
Catchwords: | Costs Just apportionment of costs No special order for costs Fixed costs |
Legislation: | Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 Legal Profession Act 2008 (WA), s 280(2) |
Case References: | Mercanti v Mercanti [2014] WASC 64 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
TYRONE KANE MERCANTI
First Defendant
PARRADELE PTY LTD
Second Defendant
SLONDIA NOMINEES PTY LTD
Third Defendant
CITYCOURT PTY LTD
Fourth Defendant
Catchwords:
Costs - Just apportionment of costs - No special order for costs - Fixed costs
Legislation:
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012
Legal Profession Act 2008 (WA), s 280(2)
Result:
First and second defendants pay the plaintiff's costs of the defendants' application fixed in the sum of $5,500
Category: B
Representation:
Counsel:
Plaintiff : Mr S Penglis
First Defendant : Mr B G Grubb
Second Defendant : Mr B G Grubb
Third Defendant : Mr B G Grubb
Fourth Defendant : Mr B G Grubb
Solicitors:
Plaintiff : Herbert Smith Freehills
First Defendant : Metaxas & Hager
Second Defendant : Metaxas & Hager
Third Defendant : Metaxas & Hager
Fourth Defendant : Metaxas & Hager
Case(s) referred to in judgment(s):
Mercanti v Mercanti [2014] WASC 64
1 LE MIERE J: On 12 November 2013 the first and second defendants, who I will refer to as the defendants, applied by letter for orders dissolving the interlocutory injunction made on 7 August 2013 or alternatively for an interlocutory injunction against the plaintiff restraining him from selling or causing the third defendant (Slondia) to sell any trust assets or alternatively orders preventing the sale of 5 Brodrick Street and permitting the first defendant (Tyrone) and his family to remain living there. On 28 February 2014 I dismissed the defendants' application: Mercanti v Mercanti [2014] WASC 64. I reserved the question of costs. The parties have now made written applications for costs orders, supported by written submissions.
Costs orders sought by plaintiff
2 The plaintiff seeks the following orders:
1. The first and second defendants pay the plaintiff's costs of the application including the hearings on 12 December 2013, 24 February 2014 and 26 February 2014, to be taxed and paid forthwith.
2. Pursuant to Legal Profession Act 2008 (WA) s 280(2), the taxation of the plaintiff's costs pursuant to order 1 above shall be on the basis that the limit imposed in item 10(a) of Table B of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 is increased to $23,000.
Orders sought by defendants
3 The defendants seek the following orders:
1. first and second defendants be awarded their costs, with reference to the Scale, fixed in the sum of $8,000 and particularised as follows:
(a) Application by letter sent to Associate dated 12 November 2013 including: Minute of Proposed Orders seeking injunction preventing sale of 5 Brodrick Street and also extension of Caveat; Affidavits in support from Tyrone Mercanti x2 (140 pages including annexures and 20 including annexures), Peter Nettleton and Anthony Torre; and memos of conferral and undertaking as to damages;
(b) Costs thrown away of hearing on 12 December 2013;
$6,000
(c) Costs of hearings on 24, 26 and 28th of February
$2,000
Total = $8,000; or alternatively
2. the court may choose to award fixed costs on the basis of the Schedule at CPD 4.7.1 - in which case the maximum costs to be awarded, to either party, would total no more than:
|
|
|
|
|
|
|
|
|
|
|
|
Plaintiff's contentions
4 The plaintiff submitted that he was successful because the defendants' application was dismissed and there is no reason why the usual rule that costs should follow the event ought not apply in this case. The plaintiff seeks a special order for costs on the basis that the scale item is inadequate having regard to the number and nature of the affidavits filed in the course of the hearing, and in addition the affidavit evidence of Christopher Hicks sworn 27 February 2014 concerning the number of hours worked by the plaintiff's solicitor and counsel and the costs incurred by the plaintiff in opposing the application. The plaintiff says that the inadequacy arises because of the complexity of the matter as well as the importance of the matter.
Defendants' contentions
5 The first defendant submits that his application was partially successful and that he should be awarded his costs of the application and also his costs thrown away for the hearing on 12 December 2013. As at 12 December 2013 the defendants sought orders that the injunctions in CIV 2186 of 2013 and in CIV 1262 of 2013 should be dissolved or alternatively injunctions should be made preventing the sale of 5 Brodrick Street or the removal of the first defendant from 5 Brodrick Street until a judgment or further order and preventing sale of any other trust property, except in the ordinary course of business and the giving of 14 days' notice to the defendants with liberty to apply. The plaintiff's offers to extend the caveat and give the written undertaking with respect to 5 Brodrick Street were not made by the plaintiff until the date of the hearing on 12 December 2013. Thus, it is said the defendants were partially successful in the application. In any event, the defendants say the adjournment of the hearing on 12 December was necessitated by the late filing of the plaintiff's affidavits in response to the application.
6 The defendants say they should also be awarded the costs of the hearings on 24, 26 and 28 February. The defendants made an offer on 27 November 2013. Some of the terms of the offer were in effect conceded by the plaintiff by the giving of undertakings and consent orders for the extension of the caveat on 12 December 2013. Further, if the plaintiff had accepted the offer the application to dissolve the injunctions would have been discontinued on 28 November 2013 and there would have been no restraint on the plaintiff or third defendant selling any trust property. Whatever the court's discretion with respect to the award of costs, the defendants submit there was nothing with respect to the application that would warrant the imposition of a special costs order. The defendants say that they should be awarded their costs fixed in the sum of $8,000 in accordance with the Practice Direction Scale referred to earlier in these reasons.
Discretion to award costs
7 The costs of interlocutory proceedings are in the discretion of the court. The usual rule is that costs follow the event. Generally speaking, a successful respondent to an interlocutory application is entitled to receive his costs from the unsuccessful applicant. This is ordinarily a just outcome because an applicant who turns out to have unjustifiably brought a respondent before the court should be required to bear the costs of the application. However, the court may refuse costs to a successful respondent who has, by some act or omission, led the applicant to bring the application where, aside from the respondents inducing conduct, the application would not in all likelihood have been brought. Furthermore, a respondent who is generally successful may not recover some or all of his costs if he is unsuccessful in raising or resisting discrete issues or obtained relief no more substantial than already offered by the unsuccessful applicant to settle the dispute. On the other hand, a cost order may be made against an applicant who makes or continues an unsuccessful application that should not have been made or persisted with.
Apportionment of costs
8 The application resulted from the conduct of the plaintiff who, on 17 October 2013, threatened to evict Tyrone from 5 Brodrick Street where he had lived with his family since 1996. That was a substantial departure from the status quo when the consent orders were made on 7 August 2013. It was not in the ordinary course of the business of the trusts to sell the real property owned by Slondia. It ought not to have been in the reasonable expectation or anticipation of Tyrone when he consented to the 7 August 2013 orders that the plaintiff would decide to cause Slondia to sell that property and evict Tyrone and his family. In those circumstances the defendants acted reasonably in bringing the application.
9 On 26 November 2013 the plaintiff offered not to sell 5 Brodrick Street. However, that was not an unqualified offer. It was made on condition that the plaintiff cause Slondia to sell 33 Gladstone Street instead and that the defendants' application be discontinued with no order as to costs. The plaintiff said that if those conditions were not met then the plaintiff would proceed with removing Tyrone and his family from 5 Brodrick Street. The plaintiff persisted with the intention of selling, or causing to be sold, 33 Gladstone Street until 19 February 2014 when the solicitors for the plaintiff and Slondia stated that they no longer intended to sell 33 Gladstone Street and would instead sell 1 Grandilla Street. That was the position of the plaintiff when the court heard and determined the defendants' application on 24 and 26 February 2014 and it was on that basis that the court dismissed the defendants' application.
10 In my view the defendants were entitled to their costs of bringing the application and their costs at least until 12 December 2013 when the plaintiff gave an unconditional undertaking that he would not sell or cause to be sold 5 Brodrick Street or interfere with the first defendant's quiet enjoyment of that property. The plaintiff is entitled to his costs at least from 19 February 2014 when he informed the defendants that he no longer intended to sell 33 Gladstone Street and would instead sell 1 Grandilla Street.
11 For the reasons I have given there should be an apportionment of costs in relation to the defendants' application. The judgment as to the apportionment is in the end an evaluative one and the exercise of discretion is based largely on impression as to the costs reasonably incurred by each of the parties in relation to the issues, or parts of the application, in relation to which they should have their costs. In the exercise of my discretion I consider that a just apportionment of costs to reflect the conduct of the parties in bringing and resisting the application and the outcome of the application is that the defendants should pay 50% of the plaintiff's costs.
No special order for costs
12 I am not satisfied that there should be a special order for costs. That is so for two reasons. The first is that the plaintiff should not have the whole of his costs for the reasons I have stated. The second is that I am not satisfied that the amount of costs allowable in respect of the application is inadequate because of the unusual difficulty, complexity or importance of the matter. Item 10 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 allows an amount of $11,011 for interlocutory proceedings in chambers. I am not satisfied that the amount of work that was reasonably necessary to be done in resisting the defendants' application is such that $11,000 is an inadequate amount. The application and resisting it involved legal and factual issues that are no more complex than in most contested applications for an interlocutory injunction or to discharge an interlocutory injunction in this court. I am not satisfied that the matter was important so as to justify an order under Legal Profession Act 2008 (WA) s 280(2). In one sense most applications for an interlocutory injunction, or to discharge an interlocutory injunction, in this court are important to the parties. But this application did not carry with it such great or serious consequences as to justify a special costs order.
Fixed costs
13 The plaintiff seeks an order that the costs be paid at once rather than in any event. Practice Direction 4.7.1 provides that as a general rule where an order for costs is to be made against a party in interlocutory proceedings, the costs will be fixed and ordered to be paid forthwith or by a particular date. There is no good reason why the general rule should not be followed in this case.
14 As I have said item 10 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 allows an amount of approximately $11,000 for interlocutory proceedings in chambers. That is an appropriate amount to allow for costs in relation to this application. The first and second defendants should pay to the plaintiff 50% of that amount, that is, an amount of $5,500.
15 In conclusion, the appropriate order for costs is that the first and second defendants pay the plaintiff's costs of the defendants' application by letter of 12 November 2013 fixed in the sum of $5,500.
0