Perth Photography Services Pty Ltd v Perth Professional Sales and Service Pty Ltd

[2010] WADC 48

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   PERTH PHOTOGRAPHY SERVICES PTY LTD -v- PERTH PROFESSIONAL SALES AND SERVICE PTY LTD [2010] WADC 48

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   8 APRIL 2010

DELIVERED          :   15 APRIL 2010

FILE NO/S:   CIV 2692 of 2004

BETWEEN:   PERTH PHOTOGRAPHY SERVICES PTY LTD

Plaintiff

AND

PERTH PROFESSIONAL SALES AND SERVICE PTY LTD
Defendant

PHOTO ELECTRONIC SERVICES PTY LTD
Third Party

Catchwords:

Practice and procedure - Review of taxation - Turns on its own facts

Legislation:

Nil

Result:

Objection disallowed

Representation:

Counsel:

Plaintiff:     Mr T T S Chin

Defendant:     Mr N Timony

Third Party  :     Mr B Serakowski

Solicitors:

Plaintiff:     Lawton Lawyers

Defendant:     Stables Scott

Third Party  :     Maitland Lawyers

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

Nil

1. DEPUTY REGISTRAR HEWITT:  In this action the defendant and the third party each became entitled to present a bill of costs for taxation following the conclusion of the trial.

2. The third party's bill was taxed on the 31 March 2010 and the certificate held open to enable the plaintiff to bring in objections which it has done by notice dated 9 April 2010. 

3. Broadly speaking, the plaintiff's claim against the defendant was that a piece of photographic equipment supplied by the defendant to the plaintiff to be used in its photographic business was not of merchantable quality giving rise to a claim for damages and the defendant's claim against the third party was as the wholesaler of that equipment, seeking to pass on any liability which it might incur by virtue of the terms of the purchase of the equipment.  

4. The objection contains a number of discrete items.  The first matter which is the subject of attack is an allowance for filing an amended defence for which $1594 was allowed. 

5. The objection is that I made the allowance even though the defendant did not amend its statement of claim in the third party's proceedings. 

6. The original defence filed was clearly inadequate and in need of amendment.  I therefore deducted the whole of the claim for the original defence filed by the third party allowed the amended defence in the sum of $1,584 intending by that process to fix a sum appropriate to the work necessary to produce the pleading in an acceptable form.  I cannot perceive an error in that process. 

7. The next objection is as to the amount allowed for getting up case.  Essentially, the objection is a re-run of arguments which were advanced before me during the course of the taxation which in essence are that the work required by the third party did not justify the allowance made.

8. After what I regard as a fairly thorough review of the work which was required of the third party and the hours which were spent undertaking that work, together with an appreciation of the seniority of the solicitor who undertook that work, I considered that the allowance should be made.  In my view the objection is nothing more than an objection as to quantum and is not a legitimate objection. 

9. Additionally I comment that the third party was not only defending the third party proceeding but also resisting the plaintiff's claim against the defendant. 

10. The final objection is to an allowance which I made for certain witness accommodation, the objection being that in part at least, although no attempt has been made to identify which part, the visits by the relevant witnesses to Western Australia were ineffectual because certain office bearers of the plaintiff were away on a holiday and could not be contacted to arrange an inspection of the relevant equipment. 

11. One of the witnesses travelled from Italy and it was necessary for the plaintiff's solicitor to speak to him and to the other witnesses as part of the preparation of the case.  It may be that not every intended purpose of the visit was achieved but nonetheless I took the view that it was necessary for the solicitor for the third party to have the opportunity to proof what proved to be critical witnesses in the course of the trial and that an allowance as was made should be made for their accommodation and so forth whilst in the State.  The fact that more was not achieved on the visit is not a reason to disallow the claim. 

12. In summary, therefore, I consider that the objections are not sustainable and I shall, upon issuing these reasons, sign my allocator in the sum of $88,129.30.