Nelson v Moorcraft

[2021] WADC 105

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   NELSON -v- MOORCRAFT [2021] WADC 105

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   29 SEPTEMBER 2021

DELIVERED          :   15 NOVEMBER 2021

FILE NO/S:   CIV ALB 3 of 2011

BETWEEN:   PETER NELSON

Plaintiff

AND

PETER MOORCRAFT

Defendant

Catchwords:

Practice and procedure - Objection on taxation - Turns on its own facts

Legislation:

Nil

Result:

Objection disallowed
Allocation signed

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	In person

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Not applicable

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

Nil

DEPUTY REGISTRAR HEWITT:

1. On 29 September 2021, I was required to complete a taxation which had been listed before me on a number of occasions and adjourned.  On each of the earlier occasions the defendant had not troubled to appear but on the occasion in question he did attend at the taxation and he came with a friend who I surmise to be Mr Giacomo Fazio.

2. At the conclusion of the taxation I held my certificate open to allow the defendant to bring in objections should he so wish.  Such objections have been lodged and that is the matter with which I must now deal.

3. As I recall, at the taxation the objection raised by the defendant was that he 'didn't like' an allowance being made to one Sheila Stanton which was claimed at $9,000 and was comprised in item 18.1 and 18.2 of the bill which was presented.

4. The allegation advanced by the objection, clearly the work of Mr Fazio, although not set out in the kind of way which one would expect, is nonetheless contained in the following paragraphs:

   At the hearing I caused Moorcraft to advise the Court that Stanton was Nelson's girlfriend, inferring that the work and accounts was not an arm's length transaction.

   Unless evidence is provided, Moorcraft does not accept Stanton's accounts as been (sic) genuine, and says probably a forgery in part or in whole.

   Consequently Nelson needs to provide the Court and Moorcraft with evidence of:

   •A copy of all Stanton's accounts each showing date, time of work schedule, rate per hour and final cost plus GST.

   •Nelson's proof of payment of each account and bank clearance of each payment.

   Nelson plaintiff, has the burden of proof to verify that the accounts are genuine.

   Moorcraft from the court seeks a stay of Stanton's accounts for taxation until Nelson provides proof that the accounts are genuine.

   In principle Moorcraft requires the above evidence from Nelson in the interest of justice and fairness seen to be done.

   Moorcraft agrees that genuine accounts should be taxed and paid.

5. The objection effectively accuses the plaintiff of fraud.

6. At the hearing I was shown an invoice from Sheila Stanton claiming amounts for preparation of trial documents and matters of that kind.  The volume of documents required to be prepared and the hourly rate of $50 per hour was not, to my mind, suggestive of an exorbitant charge, although I did consider that a reduction should be made because the figures were expressed in thousands of dollars suggestive of estimation rather than calculation.  Nonetheless, I am satisfied that a considerable amount of clerical assistance and typing was given to the plaintiff by Ms Stanton.

7. The plaintiff's bill was prepared by Mr David Garnsworthy, a solicitor of considerable experience in the preparation of accounts for taxation.  I find it difficult to believe that Mr Garnsworthy would have included such a claim had he not been persuaded that the claim was a genuine one.  Additionally, the plaintiff indicated to me that the account had been rendered and had been satisfied.

8. The plaintiff was not put on notice of this matter until the day of the taxation despite the defendant having a number of opportunities to do so.  In order to resolve this issue in the manner which the defendant says is appropriate, would require me to commence a process of calling Ms Stanton (who lives in Albany as do the parties) as a witness and cross‑examining her and, likewise, calling the plaintiff and cross‑examining him.

9. I am satisfied that the work claimed was done and am satisfied that there was a payment made by the defendant to the person who performed that work but nonetheless consider that a deduction should be made for the matters earlier mentioned.

10. Nothing is advanced by the objecting party to in any way provide a basis for an accusation of fraud by both the taxing party and Ms Stanton, nor am I able to point to any evidence other than the assertion of Mr Fazio that Ms Stanton was in fact the plaintiff's girlfriend, a proposition denied by the plaintiff.  Even if she were, if she did the work and raised a charge for it, then I see no reason to disallow the item.

11. As the matter stands before me, I see this is simply another episode in a very contentious and bitter feud between the plaintiff and the defendant which, by the time of the taxation, had been adopted by and pursued by Mr Fazio on the defendant's behalf.  Nothing in the objection persuades me that I should disallow the item which I shall allow in the amount indicated at the time of the taxation.

12. By my calculations the allowed items total $11,149.13.  The bill is taxed pursuant to a Supreme Court order which was that 70% of those costs be awarded to the plaintiff and accordingly after the necessary calculation, I shall sign the certificate in the amount of $7,804.30, that being 70% of the figure earlier mentioned.

13. The time for review shall be extended for 21 days after this decision is published on the ePortal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

AC

Court Officer

3 NOVEMBER 2021