RUMBALL & ORS -v- MORTIMORE [1999] WASC 66

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 66
Case No:	CIV:2170/1997	Heard:	8 JUNE 1999
Coram:	WHEELER J	Delivered:	22/06/99
No of pages:	6	Judgment Part:	1 of 1
Result:	Application dismissed.
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Parties:	ROBERT BRUCE RUMBALL SUSAN ELIZABETH RUMBALL THOMAS CARROLL ELLENBERG CHARLES WILLIAM MORTIMORE
Catchwords:	Review of decision of taxing officer Interpretation of order as to costs Basis of taxation No new point of principle.
Legislation:	Nil
Case References:	Bank of Western Australia Ltd v Ponga, unreported; (Master Sanderson) SCt of WA; Library No 980697; 2 December 1998 Gomba Holdings (UK) Ltd v Minories Finance Pty Ltd (No 2) [1992] 4 All ER 588 ANZ Banking Group (NZ) Ltd v Gibson [1986] 1 NZLR 556 Australian Coal and Shale Employee's Federation v Commonwealth (1953) 94 CLR 621 Citibank Savings Ltd v Pirrotta & Ors, unreported; FCt Ct of SA; BC 9801002 Mossensons v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997 Ozois v Trotman, unreported; SCt of WA; Library No 950412; 9 August 1995 Pryles & Defteros v Green [1999] WASC 34 Sandtara Pty Ltd v Australian European Finance Corporation Ltd (1990) 20 NSWLR 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RUMBALL & ORS -v- MORTIMORE [1999] WASC 66 CORAM : WHEELER J HEARD : 8 JUNE 1999 DELIVERED : 22 JUNE 1999 FILE NO/S : CIV 2170 of 1997 BETWEEN : ROBERT BRUCE RUMBALL

SUSAN ELIZABETH RUMBALL

THOMAS CARROLL ELLENBERG

Plaintiffs

AND

CHARLES WILLIAM MORTIMORE

Defendant

Catchwords:

Review of decision of taxing officer - Interpretation of order as to costs - Basis of taxation - No new point of principle.

Legislation:

Nil

Result:

Application dismissed.

(Page 2)

Representation:

Counsel:

Plaintiffs : Mr D J Garnsworthy

Defendant : Ms M G Saraceni

Solicitors:

Plaintiffs : Slee Anderson & Pidgeon

Defendant : Jackson McDonald

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

Bank of Western Australia Ltd v Ponga, unreported; (Master Sanderson) SCt of WA; Library No 980697; 2 December 1998
Gomba Holdings (UK) Ltd v Minories Finance Pty Ltd (No 2) [1992] 4 All ER 588

Case(s) also cited:

ANZ Banking Group (NZ) Ltd v Gibson [1986] 1 NZLR 556
Australian Coal and Shale Employee's Federation v Commonwealth (1953) 94 CLR 621
Citibank Savings Ltd v Pirrotta & Ors, unreported; FCt Ct of SA; BC 9801002
Mossensons v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997
Ozois v Trotman, unreported; SCt of WA; Library No 950412; 9 August 1995
Pryles & Defteros v Green [1999] WASC 34
Sandtara Pty Ltd v Australian European Finance Corporation Ltd (1990) 20 NSWLR 82

(Page 3)

1 WHEELER J: This is an application for review of the decision of a taxing officer. On 17 August 1998, Master Ng gave judgment in favour of the plaintiffs on a chamber summons pursuant to O 14 of the Rules of the Supreme Court in respect of a claim arising out…

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 Rumball v Mortimore

Details

AGLC: Rumball v Mortimore [1999] WASC 66
Case: [1999] WASC 66
Decision Date

CaseChat Overview and Summary

The case of Rumball & Ors v Mortimore involved a review of the decision of a taxing officer concerning the taxation of costs in a proceeding between the plaintiffs, Robert Bruce Rumball, Susan Elizabeth Rumball, and Thomas Carroll Ellenberg, and the defendant, Charles William Mortimore. The dispute arose from a mortgage arrangement and subsequent legal proceedings. The plaintiffs sought a review of the taxing officer's decision, arguing that the order made by Master Ng was intended to be more generous than a standard party/party taxation. The plaintiffs contended that the taxing officer had misinterpreted the order, which they believed was meant to be taxed on a solicitor/client basis or as indemnity costs.

The court was required to determine whether the taxing officer's decision was correct in interpreting the Master's order as a party/party taxation. This involved examining the terms of the order, the context in which it was made, and whether there was any error in the taxing officer's approach or in the quantum of costs awarded.

The court found that the Master's order, despite its unusual phrasing, was indeed intended to be a party/party taxation. The reasoning of the taxing officer, who applied the relevant scale items and considered the complexity of the tasks involved, was consistent with a party/party taxation. The lifting of the upper limit on the scale items did not indicate an intention for a more generous taxation. The court concluded that the taxing officer had not erred in proceeding on a party/party basis, and there was no evidence to suggest that the quantum of costs was unreasonable.

The court dismissed the application for review, upholding the taxing officer's decision. The order of Master Ng was interpreted as a party/party taxation, and the taxing officer's approach was deemed appropriate in this context.

Orders