PERRUZZA and Sons Pty Ltd (As Trustee for the G and a PERRUZZA Family Trust) v Ignazio Scala and Antonina Scala - [2000] WADC 117

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PERRUZZA & SONS PTY LTD (As Trustee for the G & A PERRUZZA FAMILY TRUST) -v- IGNAZIO SCALA and ANTONINA SCALA [2000] WADC 117

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 7 APRIL 2000

DELIVERED : 4 MAY 2000

FILE NO/S: CIV 3403 of 1998

BETWEEN: PERRUZZA & SONS PTY LTD (As Trustee for the G & A PERRUZZA FAMILY TRUST)
Plaintiff
AND
IGNAZIO SCALA and ANTONINA SCALA
Defendants

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of Taxation - Claims under Items 13 and 23.

Legislation:

Rules of the Supreme Court of Western Australia

Result:

Application dismissed. Defendants to pay costs of review.

Representation:

Counsel:

Plaintiff: Mr G Grasa
Defendants: Ms C Whisker

Solicitors:

Plaintiff: Mossensons
Defendants: Phillips Fox

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

Nil

Case(s) also cited:

Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271

DEPUTY REGISTRAR HARMAN: The defendants have sought review of the taxation of the plaintiff's bill of costs.
The first of the claims the subject of the objection was made under item 23 of the scale. In framing the bill the plaintiff sought to recover fees for services provided in the form of appearances in Chambers on 16 November 1999 and 15 December 1999. In the course of the taxation the plaintiff sought to amend the bill to allow for recovery for all services related to an oral application foreshadowed in the order of the Principal Registrar of 25 October 1999 by which the plaintiff would seek the costs of the action under the Supreme Court Scale. For those services the plaintiff then sought recovery to the extent of $4,550. At taxation no part of the services claimed under that amended item was disallowed and quantum was determined at $3,850.
The defendants' notice makes a number of adverse comments from which I have extracted a series of grounds of objection.
The first ground is in two related observations. It is contended that the application concerned a short point and that it did not warrant the briefing of counsel.
The determination of the fee simply reflected the services provided to the plaintiff in relation to the claim. According to r11(4) it is of no moment that some services were provided by counsel. The cost to the defendants was not enhanced as a consequence of the fact that the plaintiff's solicitor chose to brief counsel in relation to the application.
The second ground is that the fee indicates that too much time was devoted to the provision of the relevant services. The defendants assert that the fee reflects approximately 20 hours of time devoted to provision of the relevant services at a reasonable rate for a practitioner.
I accept that on a reading of the scale it is open to the defendants to make such a case. It is my reading of the scale that for items such as item 23 the reference to time was to justify significant increases in the scale and to provide a basis to facilitate recovery of above-scale fees. The defendants case is more in line with the manner of expression of items such as 9(c), 14(e) and 17. The distinction is significant and reflects the fact the relevant services are rendered in the presence of the paying party.
I accept that time devoted to the provision of services is a factor properly considered in the determination of quantum under item 23 however that factor ought not preclude an assessment of the significance of the application, its relative complexity and the totality of the relevant services provided. Ultimately it is a matter of considering where the particular application falls within the range provided in the scale.
The third ground goes to the hearing of the application on 16 November 1999. The defendants contend that part of the item should be disallowed.
That ground ought to be difficult to sustain in light of the fact that the order of 15 December 1999 is in the following terms:
"The Defendants pay the Plaintiff's cost of the action including the costs of this determination (16 November 1999 and 15 December 1999) to be taxed at the District Court scale."
Although there are inelegant features of that order in my opinion there can be no doubt that the plaintiff is entitled to its costs of 16 November 1999.
The fourth ground is a little difficult to discern in the form other than a complaint. It is implicit that submissions made by the plaintiff in relation to the length of the affidavit of Perruzza may have influenced the determination as to quantum. By the objection the defendants contend that although the affidavit was some 50 pages in length, the narrative portion was only some eight pages and was not complex.
I recall that a similar point was made at the taxation. At the taxation the affidavit was before me. I considered the detail of the narrative part but paid little attention to the annexures. The appropriate consideration given to the annexures being only that all or parts of them were in some way relevant to the evidence given in the affidavit. The content of the affidavit was considered at the time the determination was made in relation to quantum.
The fifth ground is that the quantum determination was unreasonable in that the fee as measured against the compromise reached between the parties in relation to the value of the subject matter of the action is disproportionate.
I accept that the issue raised by the application could be portrayed as a simple issue although it is appropriate to consider that various features of the case would bear upon the exercise of discretion by the Court. Those features of the case are evident in the written submissions of the parties.
A feature of that part of the defendants' objection is that the determination in relation to the quantum of the item is almost half of the settlement sum. In my opinion that fact ought to be of no particular concern even if it had been the case that the Court had determined the value of the subject matter. There is no reason to be overly concerned as to the prospect that a "disproportionate" sum may be determined by way of costs in relation to the value of the subject matter. Even at a time prior to the significant increase in scale costs there would be little justification to reduce the value of services properly provided to a party simply because the value of the subject was relatively small within the range of monetary jurisdiction of the Court. For what it is worth, in my opinion the present scale demonstrates that the Costs Committee at least would envisage that the costs of the provision of services might be more than the value of the subject matter. In any event, I do not consider that the costs of the item are disproportionate to the value of the subject matter of the action.
Ultimately, the defendants' objection raises the very issue which was determined by the relevant application. The consequence of the plaintiff's success in that application was inevitably that the costs would be significantly more than those available in relation to the action had the application been unsuccessful. It is as a consequence of the plaintiff's success that the fees may be considered to be disproportionate.
The facts canvassed in the application were presented in affidavits of Perruzza and Scala. The former canvassed the history of the cause of action and the progress of the action itself and was the subject of a notice to objection as to 10 paragraphs. The defendants' solicitor filed an affidavit which annexed relevant correspondence. The written submissions appear to be comprehensive. I understand that the delivery of oral submissions took up to 3.5 hours. In my opinion the issue addressed by the application was a significant feature of the action.
I have considered the terms of the defendants' notice of objection. There is no basis for review.
The second item of the bill the subject of the review is the plaintiff's claim for getting up case for trial which at taxation was also amended to increase the claim from $6,000 to $7,000.
It is difficult to discern that the defendants' comment in relation to counsel's fee amounts to an objection. If it is an objection then it appears to be along the lines that in distributing the disallowed claim for counsel's fee amongst other claims the plaintiff has obtained some advantage. On my calculations even on the figures provided by the defendants the plaintiff has not recovered to the extent of the disallowed disbursement. It is appropriate to record that the reason for the disallowance of the disbursement was that there was no proper claim, not that the services the subject of the claim were neither provided nor otherwise irrecoverable.
As to the determination in relation to quantum it is appropriate to record that it is of no consequence that the plaintiff chose to engage counsel. It is the task of the taxing officer to determine the value of appropriately provided services regardless of the identity of the provider.
The second ground is that the services provided to the client were limited as the action was not tried.
The file discloses that the action proceeded beyond an adjournment of the listing conference. On the basis of the submissions of the plaintiff and the stage to which the action had progressed, I have some difficulty accepting the defendants' implicit proposition of excessive recovery. It is significant that there is no suggestion that any service the subject of the claim ought to have been disallowed.
The third ground would appear to be that the solicitor with the conduct of the action was not a partner of the firm on the record. The defendants contend that the services should have been provided at something less than the hourly rate of a partner.
In my opinion in determining quantum it is simply a matter of reflecting upon the relative complexity of the case, the extent to which services were provided and if appropriate the seniority of the solicitor. In this case the last feature had no significant impact.
Finally the defendants object to the determination as to quantum on the basis of the relationship between the quantum determinant and the value of the settlement sum. In my opinion, the same features of my reasons for determination in relation to the other item objected to equally relate to this item.
The defendants have not satisfied me that there is any basis for review.
Accordingly, the defendants are unsuccessful in the application. The defendants are obliged to pay the costs of review. I have now signed the allocatur.