Sansom Nominees Pty Ltd v Meade
[2005] WASC 9 (S)
SANSOM NOMINEES PTY LTD -v- MEADE & ORS [2005] WASC 9 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 9 (S) | |
| Case No: | CIV:1207/2001 | 11-15, 18-20, 22 AUGUST 2003 & 20 MAY 2005 | |
| Coram: | EM HEENAN J | 17/02/05 | |
| 20/05/05 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for indemnity cost dismissed Scale of costs lifted | ||
| B | |||
| PDF Version |
| Parties: | SANSOM NOMINEES PTY LTD (ACN 008 797 948) MAURICE BRUCE MEADE ROSEMARY ADELE MEADE MONTELUSA PTY LTD (ACN 008 779 511) |
Catchwords: | Costs Application for special order Indemnity costs Power to make special order Section 215 Legal Practice Act 2003 Variation of limits in scale Taxing Master to allow reasonable costs without the limits imposed by applicable scale items Costs of claim and counterclaim |
Legislation: | Legal Practice Act 2003 (WA), s 215 Rules of the Supreme Court 1971 (WA), O 66 |
Case References: | Nil Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd [2003] WASC 53 Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1987) 71 ALR 287 Fountain Select Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397 MGICA 1992 Ltd v Kenny & Good Pty Ltd & Anor (1996) 140 ALR 707 Penfold & Anor v Higgins & Anor [2002] NTSC 89 Quancorp Pty Ltd v MacDonald & Ors [1999] WASCA 101 Re Malley SM; Ex parte Gardner [2001] WASCA 83 Re Wilcox; Ex parte Venture Industries Pty Ltd & Ors (1996) 141 ALR 727 SDS Corporation Ltd v Pasdonnay Pty Ltd & Anor [2004] WASC 26 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 20 MAY 2005 FILE NO/S : CIV 1207 of 2001 BETWEEN : SANSOM NOMINEES PTY LTD (ACN 008 797 948)
- Plaintiff
AND
MAURICE BRUCE MEADE
ROSEMARY ADELE MEADE
First Defendants
MONTELUSA PTY LTD (ACN 008 779 511)
Second Defendant
Catchwords:
Costs - Application for special order - Indemnity costs - Power to make special order - Section 215 Legal Practice Act 2003 - Variation of limits in scale - Taxing Master to allow reasonable costs without the limits imposed by applicable scale items
Costs of claim and counterclaim
(Page 2)
Legislation:
Legal Practice Act2003 (WA), s 215
Rules of the Supreme Court 1971 (WA), O 66
Result:
Application for indemnity cost dismissed
Scale of costs lifted
Category: B
Representation:
Counsel:
Plaintiff : Mr D R Kilpatrick
First Defendants : Mr M L Bennett
Second Defendant : Mr M L Bennett
Solicitors:
Plaintiff : Williams & Hughes
First Defendants : Bennett & Co
Second Defendant : Bennett & Co
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd [2003] WASC 53
Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1987) 71 ALR 287
Fountain Select Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397
MGICA 1992 Ltd v Kenny & Good Pty Ltd & Anor (1996) 140 ALR 707
Penfold & Anor v Higgins & Anor [2002] NTSC 89
(Page 3)
Quancorp Pty Ltd v MacDonald & Ors [1999] WASCA 101
Re Malley SM; Ex parte Gardner [2001] WASCA 83
Re Wilcox; Ex parte Venture Industries Pty Ltd & Ors (1996) 141 ALR 727
SDS Corporation Ltd v Pasdonnay Pty Ltd & Anor [2004] WASC 26
(Page 4)
1 EM HEENAN J: This is a summons brought by the successful plaintiff in these proceedings for a special costs order including an application for indemnity costs in relation to the action. When entering judgment on 17 February last, I ordered, in par 6 of the judgment, that the parties be at liberty to apply within 60 days for a special order as to costs or for any variation or dispensation from the limit of any item in any applicable scale of costs. An initial objection to the application, insofar as it extends to a claim for indemnity costs, was made by counsel for the defendants on the basis that the liberty reserved did not expressly include a right to apply for an order for indemnity costs in contrast to a right to apply for a special order or for any variation of or dispensation from of an item in the scale.
2 Whether that submission is well founded or not depends upon how one characterises indemnity costs as falling within the provisions of the former O 66 of the Supreme Court Rules or now s 215 of the Legal Practice Act 2003. Its consideration leads one into the complex area referred to by the submissions for the defendants and whether or not certain parts of O 66 r 12 of the Supreme Court Rules may be ultra vires the provisions of s 215 of the Legal Practice Act. I prefer the view that indemnity costs, in the sense in which they have been recognised by decisions of this Court in the past, must be regarded consistently with O 66 and s 215 and, in particular, now, to be within the contemplation of s 215(1)(d) because whatever magnitude an order for costs may eventually have, it should not in my view contain anything but a compensatory element and nothing in the nature of a punitive element. If any such order for costs is entirely compensatory, it does not seem to me to be at risk of being outside the scope of s 215 nor, for that matter, could the provisions of O 66, properly construed, be beyond power or inconsistent with any statute.
3 In the circumstances of this case, I am satisfied that, having regard to the magnitude of the issues, the volume of the materials, the length of the time needed to prepare the case for trial, the duration of the trial and the factual complexity of the case, there is justification for a special order for costs within s 215(2) of the Legal Practice Act.
4 I accept the submission by counsel for the successful plaintiff that it would be to impose an invidious obligation upon the taxing officer to seek to make a distinction between the work which was done in connection with the claim and work which was done in connection with any part of the counterclaim, including those parts of the counterclaim which were adjourned after the second day of the trial, and that consequently any order should deal with the litigation as a whole.
(Page 5)
5 The basis for the application for indemnity costs rests largely on two factors. The first is that the insistance upon the defence of the claim for rent and the pursuit of the counterclaim were, at all material times, unreasonable, neither having any arguable prospect of success. The second aspect is that persistence in the pursuit of both the defence of the claim and of the counterclaim was unreasonable to a point that would justify an order for indemnity costs in accordance with the principles recognised in the authorities was reached once proposals for the settlement of the proceedings had been proffered by the plaintiff, proposals which, in the end as I have decided it should be, were more advantageous to the defendants than the end result.
6 Those are certainly factors which need to be taken into account but it seems to me that an order allowing reasonable costs to be awarded at the discretion of the taxing officer, would be a better and surer foundation for ensuring that proper compensation for costs is ordered because such an order would preserve the scrutiny of the Court over all aspects of the costs charged rather than endorsing, without the scrutiny which would usually be possible, all the charges which have been made pursuant to contract between the plaintiff, his solicitor's and counsel.
7 For that reason, I decline the application to make an order for indemnity costs but I am satisfied that there should be an order extending the limits imposed by any applicable scale of costs and authorising the taxing officer to award such costs as he or she may consider are warranted having regard to the actual work done, the complexity and responsibility of the work, the seniority and experience of the counsel/solicitor or other employee who performed the work and any other factor considered relevant by the taxing officer.
8 This extension of any applicable limits applies not merely to the items which I am about to mention but extends also to items relating to pleadings and other heads of charge. What I now propose is no limitation on the general application of the order just proposed. The taxing officer is to be at liberty to exceed any relevant scale of cost having regard to the criteria that I have indicated. Specifically and subject to that order, I direct that the taxing officer may allow on taxation in relation to the action and to the defence to counterclaim, such amounts as he or she may consider are appropriate to the respective claims without reference to the limits fixed in the applicable costs determinations in relation to (a) discovery, (b) getting up the plaintiff's case for trial, (c) getting up the plaintiff's defence for the counterclaim for trial, and (d) the first and all subsequent days of trial.
(Page 6)
9 I will also direct that the plaintiff should recover a reasonable allowance for the cost of the transcript of trial. The plaintiff's costs should include the costs of this present application.
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