Michell Sillar McPhee (A Firm) v First Industries Corp - [2006] WASCA 24

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…

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.

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Details

Case: [2006] WASCA 24
Decision Date: 17 FEBRUARY 2006

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.

Orders