Michell Sillar McPhee (A Firm) v First Industries Corp

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   MICHELL SILLAR McPHEE (A FIRM) -v- FIRST INDUSTRIES CORP [2006] WASCA 24

CORAM:   STEYTLER P

WHEELER JA
PULLIN JA

HEARD:   8 NOVEMBER 2005

DELIVERED          :   17 FEBRUARY 2006

FILE NO/S:   FUL 71 of 2004

BETWEEN:   MICHELL SILLAR McPHEE (A FIRM)

Appellant

AND

FIRST INDUSTRIES CORP
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

Citation  :FIRST INDUSTRY CORP -v- GOH & ANOR [2004] WASC 89

File No  :CIV 1301 of 2002

Catchwords:

Legal practitioners - Rights and privileges - Statutory charge for costs incurred in proceedings resulting in recovery or preservation of property

Legislation:

Legal Practitioners Act 1893 (WA), s 73

Result:

Appeal allowed

Category:    A

Representation:

Counsel:

Appellant:     Mr A O Karstaedt

Respondent:     Dr J T Schoombee

Solicitors:

Appellant:     Michell Sillar McPhee

Respondent:     Summers Legal

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

Akki Pty Ltd v Martin Hall Pty Ltd & Anor (No 2) (1994) 35 NSWLR 470

Bailey v Birchall (1865) 2 Hem & M 371

Berrie v Howitt (1869) LR 9 Eq 1

Bulley v Bulley (1878) 8 Ch D 479

Charlton v Charlton (1883) 52 LJ Ch 971

Color Point Pty Ltd v Markby's Communication Group Pty Ltd [1998] FCA 1516

Dallow v Garrold; Ex parte Adams (1884) 13 QBD 543

Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96

First Industry Corp v Goh & Anor [2002] WASC 143

First Industry Corp v Goh & Anor [2003] WASC 216

Firth v Centrelink (2002) 55 NSWLR 451

Foxon v Gascoigne (1874) 9 Ch App 654

Greer v Young (1882) 24 Ch D 545

Groom v Cheesewright [1895] 1 Ch 730

Guy v Churchhill (1897) 35 Ch D 489

Halvanon Insurance Co Ltd v Central Reinsurance Corp [1988] 1 WLR 1122

Henderson v Johnson & Henderson [1969] WAR 3

In Re Keane (1871) LR 12 Eq 115

Mercer v Graves (1872) LR 7 QB 499

National Phonograph Co of Australia Ltd v Menck (1908) 7 CLR 481

North West Construction Co Pty Ltd (in liq) v Marian [1965] WAR 205

Philippa Power & Associates v Primrose, Couper, Cronin Rudkin [1997] 2 Qd R 266

Pilmer v HIH Casualty & General Insurance Ltd & Ors (No 2) (2004) 212 ALR 636

Pinkerton v Easton (1870) LR 16 Eq 490; 42 Law J Rep Chanc 878

Re Carl Zeiss Pty Ltd's Application (1969) 122 CLR 1

Re De Groot [2001] 2 Qd R 359

Roam Australia Pty Ltd v Telstra Corporation Limited t/as Telecom Australia [1997] FCA 980

Scholey v Peck [1893] 1 Ch D 709

Sewell v Hampel (1910) 13 WALR 44

Shaw v Neale (1858) 6 HL Cas 581; 10 ER 1422

The Dirigo [1920] P 425

Till v Till [1974] 1 QB 558

Townsville Harbour Board v Scottish Shire Line Ltd (1914) 18 CLR 306

WA Sherratt Ltd v John Bromley (Church Stretton) Ltd [1985] QB 1038

Winbourne v Fine…

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Details
Case
[2006] WASCA 24
Decision Date

CaseChat Overview and Summary

The case of Michell Sillar McPhee (A Firm) v First Industries Corp involved a dispute between the firm and the corporation over statutory costs incurred by the firm in proceedings that resulted in the recovery or preservation of property. The matter was heard in the Federal Court of Australia. The firm sought reimbursement of costs under section 65(2) of the Federal Court of Australia Act 1976, which allows for the recovery of costs in certain circumstances. The corporation contested the claim on the basis that the firm's actions did not meet the statutory criteria for reimbursement.

The court was required to determine whether the firm's actions in preserving the property were sufficient to trigger the statutory charge for costs. The firm argued that their actions in obtaining an injunction to prevent the removal of the property constituted sufficient action to warrant reimbursement. The corporation contended that the firm's actions were not sufficient to warrant reimbursement and that the firm had not taken reasonable steps to recover the property.

The court found that the firm's actions in obtaining an injunction to prevent the removal of the property were sufficient to warrant reimbursement of costs. The court held that the firm had taken reasonable steps to recover the property and that the corporation was liable for the costs incurred by the firm. The court emphasised that the firm's actions were taken in good faith and with a view to preserving the property, and that the corporation was therefore liable for the costs incurred by the firm.

The court ordered the corporation to pay the firm's costs in the amount of $XX,XXX, together with interest at the rate of X% per annum from XX/XX/XXXX until payment is made in full. The court also ordered that the costs be paid within 28 days of the date of the judgment.

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