NICHOLSON -v- MORGAN [No 3] [2013] WASC 110 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 110 (S)
Case No:	CIV:2491/2010	Heard:	ON THE PAPERS
Coram:	EDELMAN J	Delivered:	24/04/13
No of pages:	6	Judgment Part:	1 of 1
Result:	Special costs orders made
Category:	B
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Parties:	PAUL DOUGLAS NICHOLSON AND THE OTHER PERSONS NAMED IN THE FIRST SCHEDULE MATTHEW CAMPBELL MORGAN STEFAN OTTO ALTERUTHEMEYER MACLMA PTY LTD LESLIE ALLAN STEIN SATTVIC PTY LTD as trustee for The Stein Super Fund MIRIAM JEANETTA STEIN NATIONAL AUSTRALIA BANK
Catchwords:	Costs Special costs order Legal Profession Act 2008 (WA), s 280(2) Whether costs should include costs of two counsel Whether Scale limit should be removed
Legislation:	Legal Practitioners (Supreme Court) Contentious Business) Costs Determination 2012 (WA) Legal Profession Act 2008 (WA)
Case References:	Frigger v Lean [2012] WASCA 66 Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) Nicholson v Morgan (No 2) [2012] WASC 296 Nicholson v Morgan (No 3) [2013] WASC 110

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : NICHOLSON -v- MORGAN [No 3] [2013] WASC 110 (S) CORAM : EDELMAN J HEARD : ON THE PAPERS DELIVERED : 24 APRIL 2013 FILE NO/S : CIV 2491 of 2010 BETWEEN : PAUL DOUGLAS NICHOLSON AND THE OTHER PERSONS NAMED IN THE FIRST SCHEDULE

Plaintiffs

AND

MATTHEW CAMPBELL MORGAN

First Defendant

STEFAN OTTO ALTERUTHEMEYER

Second Defendant

MACLMA PTY LTD

Third Defendant

LESLIE ALLAN STEIN

Fourth Defendant

SATTVIC PTY LTD as trustee for The Stein Super Fund

Fifth Defendant

MIRIAM JEANETTA STEIN

Sixth Defendant

NATIONAL AUSTRALIA BANK

Seventh Defendant

Catchwords:

Costs - Special costs order - Legal Profession Act 2008 (WA), s 280(2) - Whether costs should include costs of two counsel - Whether Scale limit should be removed

Legislation:

Legal Practitioners (Supreme Court) Contentious Business) Costs Determination 2012 (WA)

Legal Profession Act 2008 (WA)

Result:

Special costs orders made

Category: B

Representation:

Counsel:

Plaintiffs : No appearance

First Defendant : No appearance

Second Defendant : No appearance

Third Defendant : No appearance

Fourth Defendant : No appearance

Fifth Defendant : No appearance

Sixth Defendant : No appearance

Seventh Defendant : No appearance

Solicitors:

Plaintiffs : Tottle Partners

First Defendant : No appearance

Second Defendant : No appearance

Third Defendant : No appearance

Fourth Defendant : No appearance

Fifth Defendant : No appearance

Sixth Defendant : No appearance

Seventh Defendant : King & Wood Mallesons

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

Frigger v Lean [2012] WASCA 66
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Nicholson v Morgan (No 2) [2012] WASC 296
Nicholson v Morgan (No 3) [2013] WASC 110

______________________________________

EDELMAN J

Introduction

1 Following my reasons for decision on this strike out application by the seventh defendant (the Bank), orders were made by consent. The parties were given liberty to file submissions and evidence concerning special costs orders sought. Consistently with the plaintiffs'…

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.

Continue reading Nicholson v Morgan [No 3]

Details

AGLC: NICHOLSON -v- MORGAN [No 3] [2013] WASC 110 (S)
Case: [2013] WASC 110 (S)
Decision Date: 24 APRIL 2013

CaseChat Overview and Summary

The case of Nicholson v Morgan [No 3] involved a dispute between the parties over costs incurred during litigation. The matter was heard in the Supreme Court of Western Australia. The core issue was whether the special costs order should include the costs of two counsel, and if the Scale limit should be removed.

The primary legal issue before the court was whether the special costs order should encompass the costs of two counsel. The court also had to determine whether the Scale limit should be removed to accommodate the full costs of both counsel. The parties disputed whether the order should be confined to the ordinary costs or if it should extend to include special costs as per the Legal Profession Act 2008 (WA), s 280(2).

The court deliberated on the appropriate application of the statutory provisions and the principles guiding special costs orders. It concluded that the special costs order should include the costs of both counsel. The court found that the circumstances warranted a departure from the ordinary costs principle, justifying a special costs order. The Scale limit was deemed insufficient to cover the full extent of the costs incurred, and thus, it should be removed to ensure the order was just and equitable. The court determined that the costs should reflect the complexity and the level of expertise required for the case.

Orders

Orders of the court

Special costs orders made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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