ROSS & ANOR -v- ROSS & ORS [1999] WASC 180

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 180
Case No:	CIV:2302/1995	Heard:	1 JULY 1999
Coram:	MASTER BREDMEYER	Delivered:	24/09/99
No of pages:	11	Judgment Part:	1 of 1
Result:	Application allowed
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Parties:	RAYMOND ARTHUR ROSS BERNADINE ROSS CLIVE MICHAEL ROSS JENNIFER ROSS CLYDE LYNDON ALLEN CARINE INGA ALLEN MARK PHILLIP CHRISTIE
Catchwords:	Procedure Costs Taxation of trustee's costs and solicitors costs
Legislation:	Trustees Act 1962 s 50(1)
Case References:	Giannanelli v Wraith (No 2) (1991) 171 CLR 592 Pamplin v Express Newspapers Ltd [1985] 2 All ER 185 Pryles & Deftros (A firm) v Green [1999] WASC 34 Re Lavey; Ex parte Cowan & Cowan [1921] 1 KB 344 Bowen Buchbinder Vilensky v Banning & Anor, unreported; FCt SCt of WA; Library No 960325; 20 June 1996

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ROSS & ANOR -v- ROSS & ORS [1999] WASC 180 CORAM : MASTER BREDMEYER HEARD : 1 JULY 1999 DELIVERED : 24 SEPTEMBER 1999 FILE NO/S : CIV 2302 of 1995 BETWEEN : RAYMOND ARTHUR ROSS

BERNADINE ROSS

Plaintiffs

AND

CLIVE MICHAEL ROSS

JENNIFER ROSS

First Defendants

CLYDE LYNDON ALLEN

CARINE INGA ALLEN

Second Defendants

MARK PHILLIP CHRISTIE

Trustee

Catchwords:

Procedure - Costs - Taxation of trustee's costs and solicitors costs

Legislation:

Trustees Act 1962 s 50(1)

(Page 2)

Result:

Application allowed

Representation:

Counsel:

Plaintiffs : Ms A Castle

First Defendants : In person

Second Defendants : No appearance

Trustee : Mr L F A Nixon

Solicitors:

Plaintiffs : Arthur Metaxas

First Defendants : In person

Second Defendants : No appearance

Trustee : Phillips Fox

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

Giannanelli v Wraith (No 2) (1991) 171 CLR 592
Pamplin v Express Newspapers Ltd [1985] 2 All ER 185
Pryles & Defteros (A firm) v Green [1999] WASC 34
Re Lavey; Ex parte Cowan & Cowan [1921] 1 KB 344

Case(s) also cited:

Bowen Buchbinder Vilensky v Banning & Anor, unreported; FCt SCt of WA; Library No 960325; 20 June 1996

(Page 3)

1 MASTER BREDMEYER: This is a reserved decision on the taxation of costs. The plaintiffs and the first defendants were in dispute over a house built by them at 29 Whitfield Terrace, Winthrop. They agreed, prior to trial, that the house should be sold. On 27 August 1997 Master Sanderson appointed Mark Phillip Christie, who is a valuer, as the trustee to sell the house. He made some attempts to do so but without success. He was removed from that role by a further order of Master Sanderson made on 11 December 1997. He was replaced as trustee by Mr John Hayes. Mr Christie has submitted his costs as trustee to the Court for taxation. They amount to $10,700.78. He engaged solicitors Phillips Fox and I am also asked to tax their costs of $5482.50.

2 As I have said Mr Christie was appointed as trustee to sell the property by an…

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 Ross v Ross

Details

AGLC: Ross v Ross [1999] WASC 180
Case: [1999] WASC 180
Decision Date

CaseChat Overview and Summary

In the case of Ross v Ross, the Supreme Court of Western Australia was tasked with determining the appropriate taxation of costs incurred by the trustee, Mark Phillip Christie, and his solicitors in the sale of a property. The property in question was located at 29 Whitfield Terrace, Winthrop, and was the subject of a dispute between the plaintiffs and the first defendants. The court had previously ordered the sale of the property, appointing Christie as the trustee for this purpose. Christie was later replaced by another trustee, John Hayes, and both Christie and his solicitors sought to have their costs taxed and paid from the proceeds of the sale.

The primary legal issue before the court was the appropriate level of costs that Christie and his solicitors were entitled to claim. The court had to consider the reasonableness of the charges made by Christie for his services as trustee, as well as the costs claimed by his solicitors. The court also had to determine whether the costs claimed were excessive, not properly documented, or otherwise not allowable under the relevant legislation and case law.

The court began by examining Christie's costs, which totalled $10,700.78. The court considered various objections raised by the parties and assessed the reasonableness of the charges. The court disallowed certain charges, such as the valuation fee charged by Christie, which was deemed excessive as Christie, being a qualified valuer himself, should not have engaged another valuer. The court also disallowed some of the charges as not properly documented or as being unreasonable. After considering all the objections and reducing or disallowing certain charges, the court allowed a total of $9038 for Christie's costs.

The court then turned to the taxation of the solicitors' costs, which totalled $5482.50. The court considered the appropriate hourly rates for the solicitors and assessed the reasonableness of the charges. The court found that while time charging was permitted, unit charging was not appropriate in this case as there was no costs agreement permitting it and no evidence of the actual time spent on tasks. The court disallowed certain charges as excessive or unnecessary and made various deductions from the total claimed. After considering all the objections and making deductions, the court allowed a total of $4572.50 for the solicitors' costs.

In conclusion, the court allowed the application for the taxation of costs, with the trustee's costs being taxed at $9038 and the solicitors' costs at $4572.50. The court's decision was based on a thorough examination of the charges made by Christie and his solicitors, and a consideration of the objections raised by the parties. The court's approach was to allow reasonable charges while disallowing those that were excessive, not properly documented, or otherwise not allowable under the relevant legislation and case law.

Orders