| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : NASIONAL PTY LTD -v- SUSANTO [2011] WADC 140 (S) CORAM : BOWDEN DCJ HEARD : 25-29 OCTOBER, 1-5 & 12 NOVEMBER, 2022 DECEMBER 2010, 24 FEBRUARY, 17 & 29 MARCH, 4, 2021 APRIL 2011 DELIVERED : 9 SEPTEMBER 2011 SUPPLEMENTARY
DECISION : 28 NOVEMBER 2011 FILE NO/S : CIV 1001 of 2007 BETWEEN : NASIONAL PTY LTD Plaintiff
AND
IRWAN SUSANTO
First Defendant
JUNAIDY SUSANTO
Second Defendant
Catchwords: Costs
(Page 2)
Legislation: Nil Result: Costs order made in favour of the successful parties Representation: Counsel:
Plaintiff : Mr P Mugliston
First Defendant : Mr Nugawela
Second Defendant : Mr Nugawela
Solicitors:
Plaintiff : Brook & Co
First Defendant : Tan & Tan Lawyers
Second Defendant : Tan & Tan Lawyers
Case(s) referred to in judgment(s):
Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158(S)
Carver v BAA PLC [2008] EWCA Civ 412
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S)
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115
GR Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263
Hall v Stone [2007] EWCA Civ 1354
Korner v H Korner & Co Ltd [1951] Ch 10
Michael v Western Australian Attorney-General [2006] WASCA 123
Miller v Evans [2010] WASC 127(S)
Quancorp Pty Ltd v MacDonald [1999] WASCA 101
Robinson v Australian Association of Social Workers Ltd [2000] SASC 239
Scherer v Counting Instruments Ltd [1986] 2 All ER 529
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S)
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Introduction 1 On 9 September 2011, I gave judgment for the plaintiff against the first defendant for $48,500 plus interest at the rate of 6% per annum from 31 May until judgment. I dismissed the claim against the second defendant. 2 I reserved the question of costs and requested written submissions from the parties. 3 It is sufficient to say that, consistent with the positions adopted at the trial, the parties are a long way apart.
The plaintiff's submissions 4 The plaintiff claims indemnity costs and that both the first and second defendant should be ordered to reimburse the plaintiff for costs thrown away. 5 The plaintiff also raises a number of issues in relation to specific items.
The first and second defendants' submissions 6 The first defendant says it made a number of Calderbank offers and should pay the plaintiff's costs on a party-to-party basis to the date of the offer and from then the plaintiff should pay 50% of its costs on an indemnity basis or, alternatively, a special order basis or, alternatively, a party-to-party basis. 7 The first defendant says two of its Calderbank offers were more favourable than the judgment inclusive of interest as at the date the offers were made and the plaintiff's rejection of them was either so unreasonable as to attract an award of indemnity costs or alternatively unreasonable to a lesser degree and should attract an award of costs on a party-to-party basis . 8 The second defendant says that the plaintiff unreasonably refused to accept its four offers and therefore the plaintiff should pay him 50% of the costs incurred on behalf of both defendants plus the costs, if any, incurred exclusively on his behalf on a party-to-party basis up until the date of the offer and then from that date on an indemnity basis or, alternatively, a special order basis or, alternatively, a party-to-party basis. (Page 4)
The plaintiff's claim for indemnity costs. 9 In Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S) the Court of Appeal enunciated a number of principles applicable to indemnity cost orders. Some of the principles were: (a) an indemnity costs order departs from the usual costs order that costs are awarded on a party-to-party basis; (b) the court has the discretion to make an indemnity costs order which must be exercised judicially; (c) the categories in which that discretion may be exercised are not closed; (d) an indemnity costs order may be appropriate in situations which are shown to involve some elements of improper or at least unreasonable conduct by a party or the parties' legal advisors; (e) an indemnity costs order will constitute an appropriate sanction marking the disapproval of that improper or unreasonable conduct. 10 The court referred to the competing principle of not discouraging a party from persisting in an action where success is not certain and ordering a party to pay the increased costs of litigation where that party by its conduct unnecessarily increases the costs of litigation. 11 If a party persists in a case which could only be characterised as hopeless that may lead the court to make an indemnity costs order however it is recognised that the court should not too readily categorise a case as hopeless: Quancorp Pty Ltd v MacDonald [1999] WASCA 101. 12 Although the plaintiff claimed indemnity costs in their written submissions they have not identified or even made an attempt to identify any element of improper or unreasonable conduct on the part of the first defendant or their legal advisors . 13 I do not consider the first defendant's case was 'hopeless', or that properly advised, they should have known they had no chance of success. 14 I do not consider the first defendant or their advisors acted improperly or unreasonably. 15 I do not order indemnity costs. (Page 5)
16 Having determined the plaintiff is not entitled to indemnity costs the normal order would be the first defendant pay party-to-party costs, however they resists such an order from the date they say they made Calderbank offers. 17 Although the first defendant only relies on two offers, those of 13 and 21 September 2010, it is appropriate to deal with all offers made by the defendants.
The defendants' offers of compromise 18 The defendant made five offers to compromise; one offer under O 24A of the Rules of the Supreme Court Act 1971, three Calderbank offers and one offer at a mediation conference. 19 The defendants' say their Calderbank offer and O 24A offer should be treated the same as the policy objectives behind the two procedures are the same.
The defendants' offer of 7 July 2008 20 On 7 July 2008, the defendants filed and served an O 24A offer effectively to pay the plaintiff $39,395.07 with each party bearing their own costs. The offer was open for 28 days. 21 This offer was rejected by the plaintiff. It was not unreasonable for the plaintiff to reject that offer. 22 The plaintiff recovered in excess of the amount offered and rejection of that offer can not result in any adjustment of the general rule that the successful party to an action recovers their costs.
The defendants' offer of 13th May 2010 23 At a mediation conference on 13 May 2010 the defendants offered the plaintiff effectively $8000 with no order as to costs. It was not unreasonable for the plaintiff to reject that offer. 24 The plaintiff obtained a result far better than the offer and its rejection does not result in any adjustment of the general rule that the successful party to an action recovers their costs. (Page 6)
The defendants' offer of 24 May 2010 25 On 24 May 2010, the defendants effectively offered to pay the plaintiff $59,395.07 with each party bearing their own costs. The offer was open for four days and later extended for a further seven days. 26 This amount is also below that which was recovered by the plaintiff against the first defendant. The judgment sum of $48,500 carried interest at the rate of 6% per annum from 31 May 2005. 27 Applying that interest for the period from 31 May 2005 to the date of the offer, results in the judgment amount owing as at 24 May 2010 of $63,200. 28 Further this offer was on the basis that each party bear its own costs. 29 The first defendant's affidavit of 2 April 2009, filed in support of their application for security of costs estimates their own costs as at March 2009, on my calculation, to be approx $17,700 at an absolute minimum. 30 The history of this action reveals the first trial commenced before his Honour Judge Wisbey on 11 May but was adjourned on 12 May as the plaintiff did not understand the interpretations of the court interpreter and a suitable interpreter could not be arranged in time. 31 On 13 May the parties were involved in a further five hours of mediation before the principal registrar and were unable to reach any settlement of the claim. 32 Indeed the defendants, notwithstanding that they had been provided by then with security for costs of $70,000, advised the plaintiff on 19 May 2010 that a further $73,000 was required as security for costs and later made application to the court for further security of costs in that amount. 33 Even allowing for Judge Wisbey's order, that the plaintiff pay the defendants' costs thrown away in relation to the adjournment of the trial, by the date of the defendants' offer on 24 May 2010 the costs incurred by the plaintiff must have been considerably in excess of $20,000. 34 It was not unreasonable for the plaintiff to reject that offer. 35 The plaintiff obtained a result far better than the offer and its rejection does not result in any adjustment of the general rule that the successful party to an action recovers their costs. (Page 7)
The defendants' offer of 13 September 2010 36 On 13 September 2010, the effective offer made by the defendants was to pay the plaintiff $100,000, by way of instalments of $5,000 per month, payable on 30 or 31 of each month, commencing September 2010. Again, each party was to bear their own costs including reserved costs and costs thrown away. The offer was open for 11 days. 37 The first defendant says this offer was more favourable than the judgment received, because if one does the calculation based on the judgment sum and interest at 6% to the date of the offer, the judgement sum equates to $66,797.12 whereas the offer was $100,000 payable over the next 20 months. 38 I reject the suggestion that this offer was more favourable than the judgment received. 39 An examination of the offer in its entirety results in the realisation that by the time the offered amount was paid in full (20 months after 30 September 2010) the plaintiff would have been entitled under the judgment to approximately $125,000. 40 Further the offer was on the basis that each party bear its own costs and by 13 September 2010 the plaintiff's costs must have been considerably in excess of $20,000 at the absolute minimum. 41 It clearly was not unreasonable to reject that offer. 42 The plaintiff obtained a result far better than the offer and its rejection does not result in any adjustment of the general rule that the successful party to the action recovers their costs.
The defendants' offer of 21 September 2010 43 On 21 September 2010 the defendants made a further offer to the plaintiff effectively to pay $140,000 by way of instalments of $2,500 per month payable on the 30 or 31 of each month, commencing on 31 October 2010 until full payment. Each party was to bear their own costs. The offer was open for nine days. 44 The first defendant says that this offer was more favourable than the judgment received, because if one does the calculation based on the judgment sum and interest at 6% to the date of the offer, the judgement sum equates to $66,868 whereas the offer was $140,000 payable over the next 56 months. (Page 8)
45 I reject the suggestion that this offer was more favourable than the judgment received. 46 An examination of the offer in its entirety results in the realisation that by the time the offered amount was paid in full (56 months after 30 October 2010) the plaintiff would have been entitled under the judgment to approximately $229,000. 47 Further the offer was on the basis that each party bear its own costs and by 21 September 2010 the plaintiff's costs must have been considerably in excess of $20,000. 48 It clearly was not unreasonable to reject that offer. 49 The plaintiff obtained a result far better than the offer and its rejection does not result in any adjustment of the general rule that the successful party to the action recovers their costs.
Conclusions in respect of the defendants' offers of compromise 50 I accept that each offer was expressed clearly and provided sufficient time for their consideration by the plaintiff. The last three offers contained the oft-used expression 'without prejudice save as to costs' and referred to the authority of Calderbank and that reference carries the necessary implication that if rejected the offer will be relied upon in making an application for indemnity costs: Miller v Evans [2010] WASC 127(S). 51 The plaintiff commenced proceedings in 2006 in the Supreme Court and the matter was transferred to the District Court on 10 May 2007. 52 At the time of the defendants' first offer the matter had been in the District Court for over 12 months, the offers of 13 May and 24 May 2010 were made after the adjourned first trial and the two September offers were made shortly before the trial re-commenced. 53 There was nothing unreasonable about the time any of the offers were made. 54 However a Calderbank offer will not justify an award of indemnity costs unless its rejection was unreasonable and the party who makes the Calderbank offer which is rejected bears the onus of satisfying the court it should make an order of indemnity costs in his or her favour: Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 [17], [21]. (Page 9)
55 As seen the outcome of the trial was more favourable to the plaintiff than each of the offers. 56 No offer included any allowance for the plaintiff's legal costs. The defendants knew the costs of litigation were high, as is evidenced by the material they proffered to the court on each of their security for costs application. It cannot be said by any stretch of the imagination that bearing in mind the costs, and the amount recovered by the plaintiff that the offers were unreasonably rejected. 57 The whole basis behind the first defendant's argument, that the plaintiff was worse off after rejection of the defendant's offers, is not supported by an examination of the offers. 58 There may be cases where a plaintiff obtains a more favourable judgment than a Calderbank offer and is ordered to pay costs to the otherwise unsuccessful party; however that could only occur when the offer was unreasonably rejected.
The lack of a sensible counter proposal from the plaintiff 59 None of the offers elicited any sensible counter-proposal from the plaintiff. 60 In a modern court both sides are expected to conduct themselves in a reasonable way and to seek agreement where possible: Hall v Stone [2007] EWCA Civ 1354. 61 Compromise is now seen as an object worthy of promotion, compromise is better than contest, both for the litigants concerned, the court and for the administration of justice as a whole: Carver v BAA Plc [2008] EWCA Civ 412 62 The plaintiff's response to each offer (except the last offer to which they did not respond) was in essence to maintain it was entitled to approximately $168,000 being the full purchase price. 63 If the plaintiff made a Calderbank offer, and obtained a judgement more favourable than that offer it would have been in a much stronger position to claim indemnity costs. 64 Notwithstanding the failure of the plaintiff to effectively offer a sensible compromise and the desirability from the court and community's point of view of effective compromises, the plaintiff's conduct is not such to disentitle it to costs. (Page 10)
65 The first defendant has also argued that as the plaintiff sought damages equivalent to the full purchase price and I found against him on that point, I should make no award of costs for the plaintiff proving its damages. 66 The fact that the plaintiff claimed damages calculated in a different manner from the way they were ultimately awarded does not establish that claim was unreasonable or hopeless. 67 The plaintiff did not succeed to the extent they wished however it was an arguable point and the relevant legislation enabled me, if I was so minded, to award damages in the manner claimed by them.
Conclusions as to the first defendant's costs 68 There is no reason why the ordinary order as to costs should not be made and the first defendant should pay the plaintiff's costs on a party-to-party basis to be taxed calculated in the manner dealt with later in this judgement.
Position of the second defendant 69 Notwithstanding that the plaintiff's action against the second defendant was unsuccessful; the plaintiff says that the second defendant's conduct justifies a costs order against him. 70 This submission is made on the basis that the second defendant's: (a) evidence was found to be unsatisfactory , (b) was instrumental in promoting the misleading and deceptive conduct, and played a dominant role in dealings with the plaintiff after the sale of the business; (c) conduct in the proceedings was blameworthy , aimed at assisting the first defendant and was an attempt to mislead the court; (d) maintained his position as to the events which occurred; and (e) provided a witness statement, responsive statement and a supplementary responsive statement designed to promote the case for the defendant. 71 And, the plaintiff says, this 'added to the costs of the plaintiff by furthering the case of the defendants and putting the plaintiff to great expense in disproving the allegations made by the second defendant' and (Page 11)
'such conduct should be sanctioned by a costs order obliging him to contribute towards the costs of the plaintiff (PS par 13 - 20). 72 The court has discretion to order a successful party to pay the unsuccessful parties' costs: Michael v Attorney-General(WA) [2006] WASCA 123. 73 However such an order should only be made if there is a proper basis. 74 Some cases have gone so far as to say that such an order requires strong justification: Scherer v Counting Instruments Ltd [1986] 2 All ER 529, 537; or exceptional circumstances: Robinson v Australian Association of Social Workers Ltd [2000] SASC 239 although other cases have suggested as the order is discretionary it is wrong to say that strong or exceptional cases are required before such an order is made: GR Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263. 75 The plaintiff's case was that the contract was completed in Indonesia in early 2004 and there is no suggestion the second defendant was in Indonesia during those dates. 76 The second defendant was not present when any of the misrepresentations, the core of the plaintiff's case, were made. 77 The plaintiff failed to prove its case against the second defendant. 78 I found the second defendant's evidence lacked credibility and was designed to assist the first defendant, his father, however there was no basis upon which to sue the second defendant and the plaintiff 'invited' his evidence about events occurring after the takeover of the business by pleading statements as misrepresentations which were either puffery or so vague as to be incapable of any reasonable precise meaning and could not amount to representations. 79 The second defendant was quite entitled to defend the unjustified action brought against him by the plaintiff. 80 I cannot see anything in the second defendant's conduct either as a witness or in his behaviour in the business that would justify an order that he pay a portion of the plaintiff's costs or be denied his costs. 81 I reject the submission that the second defendant should pay or contribute to the plaintiff's costs. (Page 12)
82 The second defendant says the plaintiff unreasonably refused to accept all the offers that were made and therefore the plaintiff should pay 50% of his costs either on a party-to-party basis until the date of the offer and from then on an indemnity, or a special order or a party-to-party basis. 83 Each of the offers was made jointly by both the first and second defendant. No offer involved the proposition that the plaintiff settle against the second defendant alone. To accept any of the offers would have resulted in the plaintiff settling its claim for much less than he recovered. The second defendant tied his settlement to a settlement of the claim against the first defendant 84 As I have already pointed out, the outcome of the trial was more favourable to the plaintiff than each of the offers. The basis of the second defendant's argument that the plaintiff was worse off after he rejected the second defendant's 'job lot' offer is not supported by an examination of the offers. 85 The plaintiff's conduct in rejecting the second defendant's 'job lot' offers could not by any stretch of the imagination be described as unreasonable considering the amount offered and the amount recovered.
The second defendant's application for special costs order 86 The second defendant's applies for a special costs order to direct the taxing officer to allow the costs for various conferences, court transcript and the second defendant's presence or attendance in court. 87 Reference is also made to items in the costs scale which may not cover areas of work involved and it is suggested that the hourly rates and time allowed for performance of the work by the scale are inadequate. 88 I accept a special costs order may be made: Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S), however there is absolutely nothing whatsoever to justify a special costs order in this case. 89 The case was not unduly complex. A number of the witnesses required interpreters; however notwithstanding the length of the trial, the factual and legal elements were not unduly complex. 90 There is no need or basis to depart from the scale which adequately renumerates for work necessary and reasonably performed in the case. (Page 13)
Calculation of the costs payable by the plaintiff to the second defendant 91 Both the first and second defendants were at all times represented by the same counsel and solicitors in the action. 92 In those circumstances, they say a 'rule of thumb' is that where some of the parties have been successful and others have not, the apportionment of costs to the successful party should be 50% of the costs incurred on behalf of both defendants plus the costs incurred exclusively for that particular defendant. 93 The rule of the thumb referred to is generally that: Where a solicitor acts for two or more parties in the same proceedings, each successful party is only entitled to his proportion of the costs incurred on behalf of all, plus the costs, if any, incurred exclusively on his behalf. Currabubula v State Bank of NSW [2000] NSWSC 232 [90] 94 In that caseEinstein J exhaustively examined the authorities dealing with this 'rule of thumb' and noted that: These decisions reveal that the concern of the rule of thumb is to achieve substantial justice in the awarding of the costs as between a partially successful plaintiff and various successful and unsuccessful defendants… The rule operates upon the premise that defendants are proportionally responsibly for and liable for the joint costs involved in amounting the defence … Where the premise is falsified or the rule does not achieve its intended effect, it finds no application. 95 Einstein J considered the purpose of the rule of thumb was to prevent a plaintiff who had only been partially successful from being unjustly enriched and to prevent unsuccessful defendants from being unfairly burdened by thrusting onto them the whole of the plaintiff's costs, not referrable to the action against them: Currabubula [90-106]. 96 His Honour referred to Korner v H Korner & Co Ltd [1951] Ch 10 where Winn-Parry J, upheld on appeal, upheld a decision of the taxing master not to apply the rule of thumb because to apportion the costs equally in a situation where the issue on which the plaintiff was successful was the most substantial issue and was distinct from the issue in which the plaintiff failed against the other defendant, was to apply the rule to achieve an unjust result [98-99]. 97 In this case, the vast majority (in my estimate 90%) of the trial concerned the liability of the first defendant who made the misrepresentations. On this issue the plaintiff was successful. (Page 14)
98 The costs order, to do substantial justice between the parties, should reflect the plaintiff's lack of success against the second defendant as well as the less substantial role played by the second defendant in occasioning the costs incurred by the plaintiff in the conduct of the litigation. 99 Accordingly the order I make is that the first defendant do pay 90% of the plaintiff's costs of the proceedings on a party-to-party basis. This reflects the substantial success of the first plaintiff, but obviously the first defendant should not be ordered to pay that portion of the plaintiff's costs which relate to his failed action against the second defendant. 100 I have calculated 10% of the plaintiff's costs relate to pursuing the second defendant by approaching the matter broadly, and as a matter of impression, and without an attempt at 'mathematical precision', as suggested in Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158(S) [6]. 101 I order the plaintiff pay 10% of the defendant's party-to-party costs to the second defendant as its costs. This is designed to reflect the significantly lesser substantial role played by the second defendant in the litigation and ensure he recovers those costs which were exclusively expended in his defence. Again the figure has been calculated by approaching the matter broadly, and as a matter of impression, and without an attempt at 'mathematical precision'.
The plaintiff's claim for costs thrown away 102 Although the plaintiff seeks an order that it be reimbursed for costs thrown away, they do not identify those costs. 103 The only order relating to costs thrown away was the order by Judge Wisbey on 27 May 2010 when he ordered 'the plaintiff be directed to pay the costs thrown away by reason of the adjournment. Costs to be taxed'. 104 This related to the adjournment of the trial that commenced on 11 May 2010 and continued the following day. It was adjourned because of difficulties with the interpreter. 105 The plaintiff did not seek to appeal the order of Judge Wisbey and it cannot now go behind that order. (Page 15)
Additional matters 106 Insofar as other matters raised by the parties in relation to the costs in general, I make the following rulings and observations. 107 In respect of those matters in which I do not make rulings I provide observations, not to bind, but to assist the taxing officer.
1. Financial accounts relating to the business 108 The plaintiff made an application on 17 October 2007 to the principal registrar for orders that the defendants provide information relating to the accounts. 109 There is already a costs order in relation to that interlocutory matter. The order was that costs be in the cause. The plaintiff did not seek to appeal that order and he cannot now go behind it. 110 Accordingly no further order in relation to that matter is or should be made.
2. Reports of Mr Oudejans 111 The defendants do not dispute Mr Oudejans' reports were necessary for the action. This is a matter to be dealt with by the taxing officer in the usual way.
3. Forensic examination of computers of Mr Low 112 During the trial, the defendant called Mr Low as a witness. 113 In the course of his cross-examination, the plaintiff successfully applied for an order that computers used by Mr Low be forensically examined by their expert. That order was granted. 114 The forensic expert was not called to give evidence. 115 The plaintiff's own cost submissions state (PS 34 (l)) 'the expert witness carrying out the forensic examination was unable to assist the court by advising the court precisely when the data was inserted into the computer, the decision was made to not call the expert witness at the trial who carried out the forensic examination'. 116 There was no evidence that the entries on the computer were in any shape or form other than as stated by Mr Low. (Page 16)
117 Simply put, the plaintiff went 'fishing' hoping to find something useful to their case. They were unable to. 118 Therefore the defendants should not be ordered to pay the costs of that application and examination.
4. Lottery West 119 The defendants do not dispute that the plaintiff subpoena to Lottery West was a necessary action and it is to be dealt with by the taxing officer in the usual way.
5. The applications for security of costs 120 The costs of the first application for security of costs were reserved by order of Registrar Kingsley on 4 June 2009. 121 A second application, for further security of costs, was dismissed by Registrar Kingsley on 13 August 2010 and the defendants were ordered to pay the plaintiff's costs of the application in any event, with liberty to apply. 122 The defendants' appeal against that decision was dismissed by Judge Goetze on 1 October 2010 with an order that the 'defendant (sic) pay the plaintiff's costs to be taxed'. 123 A third application, for further security for costs, was made before me on 12 November 2010 and granted with an order that costs follow the event. 124 A fourth application, for further security of costs, was made before me on 24 February 2011 and granted with an order that the plaintiff pay the defendants' costs of and incidental to the application. 125 I order the costs reserved by Registrar Kingsley on 4 June 2009 follow the event.
6. Transcripts 126 The plaintiff's application for costs of the court transcript is allowed, subject to proof of the expense to the taxing officer. In light of the length of the trial that was a reasonable expense. (Page 17)
7. The plaintiff's application for the costs incurred by solicitor attending and selecting interpreters 127 The costsincurred by the plaintiff's solicitor attending and selecting interpreters must be considered in light of the obligation on the party calling a witness to ascertain the dialect the witness speaks and advise the court of that dialect. 128 To simply advise the court that the witness speaks Indonesian was not sufficient. 129 The court provided an interpreter who had 20 years experience. 130 The original listing of the trial in May 2010 before his Honour, Judge Wisbey was adjourned for reasons already stated. 131 In applying to adjourn the trial the plaintiff's counsel said that if the adjournment was granted they would like to 'speak to the new interpreter to ascertain they spoke the same dialect as the witness who had a Chinese background' (ts 78). This was a very sensible suggestion. The plaintiff's solicitors should have ensured it occurred before the May trial commenced. 132 Further orders were made by the court that the plaintiff ensure the next interpreter was satisfactory to the plaintiff's witnesses and the defendants. 133 Such an order was necessary only because the plaintiff had not ensured the interpreter originally obtained by the court spoke the dialect of its principal witness. 134 In those circumstances I do not allow the costsincurred by the plaintiff's solicitor attending and selecting interpreters
8. Fees for translation of documents 135 The plaintiff has not provided me with sufficient detail relating to which documents they are referring to and this matter is left to the discretion of the taxing officer.
9. Travel to and from Indonesia 136 The plaintiff seeks costs for 29 airfares for its directors and shareholders travelling to and from Perth. (Page 18)
137 The defendant does not dispute that costs of the trips required as a result of attendance at the trial are allowable, but disputes the other travel. 138 There is insufficient information provided as to which trips were necessarily incurred in the conduct of the litigation and these matters are best dealt with by the taxing officer.
10. Plaintiff's response to defence and counterclaim 139 The defendants' counterclaim was withdrawn by consent orders filed on 14 April 2009 and on 17 April 2009 Registrar Hewitt ordered the defendants pay the plaintiff's costs in the counterclaim to be taxed. 140 No further order is necessary in relation to the counterclaim. 141 Insofar as the plaintiff's response to the defence the party-to-party costs order against the first defendant would cover that item. The taxing officer will tax the quantum in the normal manner.
Security for costs 142 The following securities for the defendants' costs have been provided by the plaintiff: (a) $70,000 on 6 November 2009; (b) the plaintiff's share in the monies held by Sue & Co being, as I understand it, half of $78,951.08 as at the date of the order; (c) a caveat in favour of the defendant in the sum of $20,000 lodged against Mr Tanudjaja's property being certificate of title volume 2193, folio 624. 143 There should also be orders releasing the plaintiff from some of the security obligations. 144 The orders I make are: 1. The first defendant do pay 90% of the plaintiff's party-to-party costs to be agreed or taxed, such costs not to include the plaintiff's costs of the application for and examination of the computer of Mr Low, nor the plaintiff's solicitors costs of attending and selecting an interpreter. (Page 19)
2. The plaintiff do pay the second defendant's costs which I fix at 10% of the first and second defendant's taxed or agreed party-to-party costs. 3. $25,000 of the amount paid into court on 6 November 2009 by the plaintiff shall remain as security for the second defendant's costs, all other securities are to be released to the plaintiff and the defendant shall within 31 days remove the caveat lodged on the plaintiff's property. 4. There is liberty to apply.
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