SANSOM NOMINEES PTY LTD -v- MEADE & ORS [2005] WASC 9 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 9 (S)
Case No:	CIV:1207/2001	Heard:	11-15, 18-20, 22 AUGUST 2003 & 20 MAY 2005
Coram:	EM HEENAN J	Delivered:	17/02/05
Supplementary Delivered:	20/05/05
No of pages:	6	Judgment Part:	1 of 1
Result:	Application for indemnity cost dismissed Scale of costs lifted
Category:	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

CITATION : SANSOM NOMINEES PTY LTD -v- MEADE & ORS [2005] WASC 9 (S) CORAM : EM HEENAN J HEARD : 11-15, 18-20, 22 AUGUST 2003 & 20 MAY 2005 DELIVERED : 17 FEBRUARY 2005 SUPPLEMENTARY
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

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.

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Details

Case: [2005] WASC 9 (S)
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Sansom Nominees Pty Ltd (plaintiff) sought a special order for costs, including an application for indemnity costs, against Meade and others (defendants). The case involved a dispute over costs incurred in a legal action where the plaintiff was successful. The court had to determine whether the plaintiff was entitled to indemnity costs and if the reserved liberty to apply for a special costs order encompassed an application for indemnity costs.

The legal issues before the court were whether indemnity costs fell within the provisions of the Legal Practice Act 2003 and whether the court had the power to make a special order for such costs. The court had to consider the nature of indemnity costs and whether they could be considered entirely compensatory, thus falling within the scope of the Act. Additionally, the court examined whether the provisions of the former O 66 of the Supreme Court Rules could be beyond power or inconsistent with any statute.

The court found that indemnity costs, as recognised by past decisions, should be regarded as within the contemplation of the Legal Practice Act. It held that an order for costs should contain only a compensatory element and nothing punitive. Given the magnitude of the issues, the volume of materials, the length of the time needed to prepare the case, the duration of the trial, and the factual complexity of the case, the court was satisfied that a special order for costs was justified. The court declined to make an order for indemnity costs, preferring instead to allow the taxing officer to award reasonable costs based on the actual work done, complexity, responsibility, and other relevant factors. The court also directed that the taxing officer could exceed any relevant scale of costs in relation to discovery, preparing the plaintiff's case and defence for trial, and the trial itself.

The court lifted the scale of costs and authorised the taxing officer to award such costs as considered appropriate for the work done. The plaintiff was also directed to recover a reasonable allowance for the cost of the trial transcript, and the costs of the present application were to be included in the plaintiff's costs.

Orders