Rose Angela Caffey as trustee for the Caffey Family Trust v Leatt­Hayter [No 4]

[2015] WASC 256

ROSE ANGELA CAFFEY as trustee for the CAFFEY FAMILY TRUST -v- LEATT­HAYTER [No 4] [2015] WASC 256

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 256
Case No:	CIV:1258/2012	Heard:	ON THE PAPERS
Coram:	BEECH J	Delivered:	17/07/15
No of pages:	5	Judgment Part:	1 of 1
Result:	Questions answered
Category:	B
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Parties:	ROSE ANGELA CAFFEY as trustee for the CAFFEY FAMILY TRUST ROSE ANGELA CAFFEY JAMES DALE CAFFEY GEOFFREY RICHARD LEATT­HAYTER JOSCELYN ROYSTON LEATT­HAYTER SEASIDE CORPORATION PTY LTD
Catchwords:	Costs First plaintiff successful against some defendants and unsuccessful against another defendant Order made that unsuccessful defendants pay the first plaintiff's costs of the action Question referred by registrar Question whether where first plaintiff's case was run jointly against all defendants all costs recoverable by first plaintiff Proper construction of costs order Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 45
Case References:	Caffey v Leatt-Hayter [2013] WASC 348(S) Caffey v Leatt-Hayter [No 3] [2013] WASC 348 Mercer v Western Australian Planning Commission [No 2] [2010] WASC 46

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ROSE ANGELA CAFFEY as trustee for the CAFFEY FAMILY TRUST -v- LEATT­HAYTER [No 4] [2015] WASC 256 CORAM : BEECH J HEARD : ON THE PAPERS DELIVERED : 17 JULY 2015 FILE NO/S : CIV 1258 of 2012 BETWEEN : ROSE ANGELA CAFFEY as trustee for the CAFFEY FAMILY TRUST

First Plaintiff

ROSE ANGELA CAFFEY
JAMES DALE CAFFEY
Second Plaintiffs

AND

GEOFFREY RICHARD LEATT­HAYTER
JOSCELYN ROYSTON LEATT­HAYTER
First Defendants

SEASIDE CORPORATION PTY LTD
Second Defendant

Catchwords:

Costs - First plaintiff successful against some defendants and unsuccessful against another defendant - Order made that unsuccessful defendants pay the first plaintiff's costs of the action - Question referred by registrar - Question whether where first plaintiff's case was run jointly against all defendants all costs recoverable by first plaintiff - Proper construction of costs order - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 45

Result:

Questions answered

Category: B

Representation:

Counsel:

First Plaintiff : On the papers
Second Plaintiffs : On the papers
First­named First Defendant : On the papers
Second­named First Defendant : No appearance
Second Defendant : On the papers

Solicitors:

First Plaintiff : Henry Sklarz
Second Plaintiffs : Henry Sklarz
First­named First Defendant : Cullen Babington Macleod
Second­named First Defendant : No appearance
Second Defendant : Cullen Babington Macleod

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

Caffey v Leatt-Hayter [No 3] [2013] WASC 348
Caffey v Leatt-Hayter [No 3] [2013] WASC 348(S)
Mercer v Western Australian Planning Commission [No 2] [2010] WASC 46

BEECH J:

Introduction

1 The registrar has referred questions arising in the course of a taxation for the direction of the court pursuant to O 66 r 45 Rules of the Supreme Court 1971 (WA).

2 On 20 September 2013 I delivered my reasons for judgment after the trial of the action.1 On that date I ordered that:

1. There be judgment for the first plaintiff against the first named first and the second defendants in the sum of $246,652.05

2. The plaintiffs' claims otherwise be dismissed.

3. The first named first and second defendants pay the first plaintiff's costs of the action, including reserved costs, to be taxed if not agreed.

4. The plaintiffs file and serve submissions in relation to the question of the second named first defendant's costs by 2 pm on 27 September 2013.

5. The defendants file and serve submissions in relation to that topic by 4 pm on 4 October 2013.

6. The question of the second named first defendant's costs be determined on the papers.

3 Thus the first plaintiff succeeded against the first-named first defendant and the second defendant (the unsuccessful defendants) and failed against the second-named first defendant.

4 Following the exchange of submissions in relation to Mrs Leatt-Hayter's costs, supplementary reasons for the decision were delivered.2 I ordered that the plaintiffs pay the second-named first defendant's costs of the action, excluding the costs of and incidental to the witness statements of Dianne Touchell and objections thereto, to be taxed if not agreed.

5 In the course of the taxation of the first plaintiff's costs, competing submissions were made to the registrar about the proper approach to the taxation. As a consequence, the registrar referred questions to me under O 66 r 45.

The questions referred

6 The questions referred are as follows:

1. Where the first plaintiff's case (including pleadings, discovery, and evidence adduced (including expert evidence) was run jointly against the first named first defendant and the second named first defendant (or all three defendants) then are all the taxed costs recoverable by the first plaintiff?

2. Is the only restriction on the first plaintiff's recovery those taxed costs solely attributable to any part of the first plaintiff's case which was solely pleaded against the second named first defendant, i.e. in her individual capacity (separate from the first named first defendant and/or the second defendant)?

3. If question 2 is answered in the negative, then is there an apportionment, by way of a percentage reduction to be applied to the costs claimed by the first plaintiff, where the case was run jointly against the first named first defendant and the second named first defendant (or all three defendants) and, if so, what is the percentage apportionment to be applied?

The disposition of the application

7 The unsuccessful defendants submit that the questions should be answered as follows:

1. No.

2. No.

3. Yes, percentage of or in the order of 30%.

8 The unsuccessful defendants' submissions invite attention to the cases concerning the proper exercise of the broad discretion of the court as to costs, including the discretion to apportion costs in relation to discrete and severable issues.3

9 A question as to the proper construction of the costs order may be dealt with under O 66 r 45.4 Determination of a question referred under O 66 r 45 does not provide an occasion for revisiting the terms of a costs order made.

10 In this case, the terms of the costs order made in favour of the first plaintiff are clear. Without any opposition from the unsuccessful defendants, the order was made in terms that the unsuccessful defendants pay 'the first plaintiff's costs of the action'. The reference to the first plaintiff's costs of the action means what it says. It is a reference to the whole of the first plaintiff's costs of the action.

11 The submissions made by the unsuccessful defendants on this application assert discretionary reasons as to why justice favours an apportionment of the first plaintiff's costs as between those costs referable to her claim against the unsuccessful defendants and those costs referable to her claim against the successful defendant. Those are matters which might perhaps have been advanced in the context of determining the proper costs order to be made in favour of the first plaintiff. However, no such submissions were advanced. The costs orders were made in the terms I have outlined. In my view, nothing in the unsuccessful defendants' submissions sustains giving a construction to the costs order actually made to the effect advanced by the unsuccessful defendants' submissions. In my opinion, the language of the court's orders cannot reasonably bear the meaning invited by acceptance of the submissions advanced by the relevant defendants.

12 For these reasons, the costs order made in favour of the first plaintiff against the unsuccessful defendants requires the unsuccessful defendants to pay the whole of the first plaintiff's costs. That makes it inappropriate to answer some of the questions, because they are premised on a different assumption.

13 I answer the questions as follows:

(1) Yes.

(2) Inappropriate to answer.

(3) Does not arise.

______________________________________

1Caffey v Leatt-Hayter [No 3] [2013] WASC 348.
2Caffey v Leatt-Hayter [No 3] [2013] WASC 348(S).
3 First-named first defendant's and second defendant's submissions on costs dated 25 June 2015 [14] - [17].
4 See, for example, Mercer v Western Australian Planning Commission [No 2] [2010] WASC 46.