Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd
[2015] WASC 242 (S)
•27/05/16
SANTOS OFFSHORE PTY LTD -v- APACHE OIL AUSTRALIA PTY LTD [2015] WASC 242 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 242 (S) | |
| Case No: | CIV:1853/2015 | ON THE PAPERS | |
| Coram: | PRITCHARD J | 27/05/16 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Special costs order made | ||
| B | |||
| PDF Version |
| Parties: | SANTOS OFFSHORE PTY LTD APACHE OIL AUSTRALIA PTY LTD APACHE EAST SPAR PTY LTD APACHE KERSAIL PTY LTD |
Catchwords: | Costs Special costs order Legal Profession Act 2008 (WA) s 280(2)(c) Inadequacy of applicable costs determination Complexity of matter |
Legislation: | Legal Profession Act 2008 (WA), s 280(2) Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA) |
Case References: | Atwell v Roberts [2013] WASCA 37 (S) Brookvista Pty Ltd v Meloni [2009] WASCA 180 Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S) EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) Electricity Generation and Retail Trading Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S) Grundy v Cassar [No 2] [2012] WASC 103 Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) Kidd v State of Western Australia [2015] WASCA 62 (S) Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242 Swansdale Pty Ltd v Whitecrest Pty Ltd [2010] WASCA 129 (S) Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2) Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S) Walter v Buckridge [No 5] [2012] WASC 495 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
APACHE OIL AUSTRALIA PTY LTD
First Defendant
APACHE EAST SPAR PTY LTD
Second Defendant
APACHE KERSAIL PTY LTD
Third Defendant
Catchwords:
Costs - Special costs order - Legal Profession Act 2008 (WA) s 280(2)(c) - Inadequacy of applicable costs determination - Complexity of matter
Legislation:
Legal Profession Act 2008 (WA), s 280(2)
Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA)
Result:
Special costs order made
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : Herbert Smith Freehills
First Defendant : Clifford Chance
Second Defendant : Clifford Chance
Third Defendant : Clifford Chance
Cases referred to in judgment:
Atwell v Roberts [2013] WASCA 37 (S)
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S)
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S)
Electricity Generation and Retail Trading Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S)
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S)
Grundy v Cassar [No 2] [2012] WASC 103
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Kidd v State of Western Australia [2015] WASCA 62 (S)
Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242
Swansdale Pty Ltd v Whitecrest Pty Ltd [2010] WASCA 129 (S)
Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2)
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S)
Walter v Buckridge [No 5] [2012] WASC 495
1 PRITCHARD J: In June 2015, Santos Offshore Pty Ltd (Santos) commenced proceedings against the Defendants seeking declarations of the invalidity of Notices which were issued to it by the Defendants, purportedly pursuant to a pre-emptive rights clause contained in an agreement between them for the exploitation of a petroleum production licence (the Spar Joint Operating Agreement (Spar JOA)).
2 The matter proceeded to a one-day trial on an urgent basis. On 3 July 2015, I delivered reasons in which I concluded that the Notices were invalid and that declarations should be made to that effect. These reasons should be read in conjunction with those earlier reasons for decision, and the same terms and abbreviations have been used.1
3 On 10 July 2015, I made final orders, which included declarations as to the invalidity of the Notices, and an order (Order 10) that the Defendants pay Santos' costs of the action. I also granted liberty to Santos to make a special costs application, and ordered that any such application be dealt with on the papers.
4 In the exercise of that liberty to apply, Santos made an application (the Application) pursuant to s 280(2)(c) of the Legal Profession Act 2008 (WA) (the LP Act) for special costs orders to remove the limitations imposed by the Legal Profession (Supreme Court) Contentious Business Determination 2014 (WA) (the Determination). The special costs order for which Santos applied was in the following terms:
1. The Plaintiff's costs of the action are to be taxed without the limitations imposed by:
(a) the maximum hourly rates fixed under Table A; or
(b) the maximum allowances for time, number and experience of the fee earners or total costs under items 1, 17 and 20(a), (b), (e) and (h) of Table B,
of the Legal Profession (Supreme Court) Contentious Business Determination 2014 (WA).
6 For the reasons set out below, a special costs order should be made in the terms sought.
1. The basis for a special costs order
7 Ordinarily, the taxation of bills of costs charged by a law practice is subject to costs determinations made by the Legal Costs Committee established under the LP Act.2 The Determination provides that, subject to the existence of a written agreement as to costs with a client, the costs of or in relation to a party to an action which are recoverable by one party from another party, or payable by that party to that party's own legal practice, shall not exceed those set out in the Supreme Court Scale of Costs 2012 (the Scale) which is set out in Table B of the Schedule to the Determination.3 The rates for particular items in the Scale are calculated by reference to maximum hourly and daily rates for counsel, legal practitioners and legal support staff which are set out in Table A of the Schedule to the Determination.4
8 The limits imposed by the scale of costs under an applicable costs determination are able to be raised or removed by the Court pursuant to s 280(2) of the LP Act, which provides:
[I]f a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -
(a) order the payment of costs above those fixed by the determination;
(b) fix higher limits of costs than those fixed in the determination;
(c) remove limits on costs fixed in the determination;
(d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
9 The principles in relation to the making of special costs orders under s 280(2) of the LP Act are well established. The court must form an opinion which has two components. First, the court must determine that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate. Secondly, the court must conclude that the inadequacy arises because of 'the unusual difficulty, complexity or importance of the matter'.5 The term 'unusual' in s 280(2) qualifies only the term 'difficulty' and not the terms 'complexity' or 'importance'.6 The word 'unusual' in this context means unusual having regard to the usual kinds of civil cases determined in this Court and the District Court.7 The word 'importance' in s 280(2) encompasses importance to the parties and does not require a broader importance to the public or a sector of the public.8
10 The question whether the proceedings can be characterised as unusually difficult, complex or important is assessed in respect of the proceedings as a whole, and not in respect of each individual item in the applicable scale.9
11 The Court will form the opinions required under s 280(2) of the Act as a matter of impression, rather than of science or mathematics, because it has heard the matter and is familiar with the way in which the case was conducted, and will be in a position to take account of the issues involved.10
12 The customary way of establishing that the amount of costs allowable under the applicable determination is inadequate is by establishing that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit imposed by that determination.11 It is for that reason that the Court of Appeal has observed that the affidavit filed in support of a special costs application should ordinarily annex a draft bill of costs that specifies the amounts proposed to be claimed under each discrete sub-item of the determination and the total amount proposed to be claimed.12
2. The items of the Scale the subject of the application, and the evidence in support of the application for a special costs order
13 Santos seeks the removal of the limitations imposed by the maximum allowable hourly rates fixed under Table A, or the maximum allowances for time, number and experience of fee earners, or total costs, under items 1, 17, 20(a), 20(b), 20(e) and 20(h) of the Scale.13
14 In support of its application for special costs orders, Santos relied on an affidavit sworn by Mr Shane Murphy, a solicitor for Santos. Mr Murphy deposed to the number of hours of work done by the counsel and legal practitioners acting for Santos, and the total amount charged in respect of each of the items of work in the Scale which are the subject of the special costs application. Although Mr Murphy did not attach a draft bill of costs to his affidavit, his affidavit contained sufficient detail to make an assessment of the legal costs incurred by Santos, having regard to the items of work covered by the Scale.14
15 I turn to explain why I consider that the requirements for a special costs order have been made out.
3. Whether the amounts allowed under the relevant items of the Scale are inadequate
16 Mr Murphy deposed that the number of hours of work performed exceeded the number of hours of work allowed for each of the relevant items under the Scale. In addition, he deposed that the hourly rates charged by the counsel and senior practitioners involved exceeded (by a considerable margin) the maximum hourly rates on which the Scale allowances are calculated. (In respect of the work done by junior practitioners, Mr Murphy deposed that the hourly rate charged was, on average, marginally above the hourly rate permitted under the Scale.)
17 Mr Murphy deposed that the amount which Santos had been, or was likely to be, charged would exceed the limit for each relevant item under the Scale.
18 Items 1(a) and (b) provide for a maximum allowance of $869 for the preparation of a writ of summons against three defendants, which represents 1.5 hours of work by a senior practitioner, plus a modest additional allowance for each additional defendant. The allowance under item 1(c) for drafting the statement of claim is $4,730, representing 10 hours of work by a senior practitioner.
19 Item 20 deals with the costs of the trial. For a one day trial, items 20(a) and (b) impose a limit of $17,325 for the fees of junior counsel and $30,195 for senior counsel's fees based on 3.5 days of preparation, and the first day of the trial.
20 The conclusion that the taxed amount of Santos' bill is likely to exceed the Scale limits for items 1, 20(a) and 20(b) is supported by the fact that the time spent, and amounts charged, by Santos' counsel alone exceeded the total allowances permitted under those items of the Scale.
21 Item 17 covers the work done in preparing the case for trial and includes work reasonably and necessarily undertaken prior to commencement of the proceedings. The maximum allowance under item 17 is $56,760, which represents 120 hours of work by a senior practitioner. The number of hours of work performed by practitioners in Mr Murphy's firm exceeded the limits under item 17 by a comfortable margin, and as I have noted, the hourly rates charged by senior practitioners in the firm exceeded the maximum rates permitted under Table A of the Schedule to the Determination.
22 Item 20(e) permits an allowance for an instructing senior practitioner to attend the trial, at the rate of $473 per hour. Santos' counsel were instructed at the trial by more than one legal practitioner and the rates charged by the senior practitioners involved exceeded the maximum rates permitted under Table A of the Schedule to the Determination.
23 Finally, item 20(h) permits an allowance for an instructing senior practitioner to attend on the reserved judgment, including preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders, at the rate of $451 per hour. Mr Murphy deposed that two senior practitioners and a clerk undertook work covered by this item. The rates charged by the senior practitioners exceeded those permitted under Table A of the Schedule to the Determination.
24 There exists the prospect in any given case that the taxing officer may not allow all of the costs charged for the legal work covered by each item in the applicable scale. Nevertheless, having regard to the nature of the present matter, to the nature and volume of the legal work undertaken, and to the charges imposed for that work, I am satisfied that there is a fairly arguable case that the bill which would be presented to the taxing officer may tax at an amount which is greater than the limits imposed by items 1, 17, 20(a), 20(b), 20(e) and 20(h) of the Scale.
4. Whether the inadequacy of the Scale limits arises because of the unusual difficulty, or complexity or importance of the matter
25 The next question is whether the inadequacy of the Scale limits arises because of the unusual difficulty, complexity or importance of the matter. The Defendants submitted that this was not a matter which was unusually difficult, or complex, or important. That submission was, with respect, both surprising and lacking in merit.
26 In my view, there is no doubt that the inadequacy of the Scale limits in this case is a consequence both of the importance of the matter to Santos (and indeed to all of the parties to the Spar JOA) and of the complexity of the matter. The validity of the Notices was clearly of considerable importance to Santos (and to the Defendants). If the Notices were valid, the terms and conditions they contained would dictate the basis on which Santos would be entitled to exercise its rights of pre-emption and to acquire the Defendants' interests under the joint venture between the parties (the Spar JV). Among the issues for determination was whether Santos was required to acquire the interests of all of the Defendants, or instead, whether it was entitled to choose to acquire all, or only some, of the Defendants' interests in the Spar JV. The result of any such acquisition would be that some or all of the Defendants may be compelled to leave the Spar JV, and Santos would acquire a higher participating interest in the Spar JV. The manner by which the purchase price was calculated was also in issue. By any measure, the Defendants' participating interests were clearly of considerable value. (Counsel for Santos pointed out that the offer set out in the Notices to sell the Defendants' interests to Santos was for a total of just under US$273 million.15) Finally, the matter was important because Santos was required, under the terms of the pre-emption clause, to decide whether to accept the offers to acquire the Defendants' participating interests within a very short time frame. It was thus essential that the validity of the Notices be resolved within that short time frame.
27 The importance of the matter (to all of the parties) was reflected in the fact that both Santos and the Defendants were represented by large, international commercial law firms, who in turned briefed very experienced senior counsel, who led junior counsel at the trial. All of the parties clearly made the decision that the action was of sufficient importance to warrant the devotion of considerable resources to pursuing, and defending, the action.
28 Furthermore, the issues which required resolution at the trial were of some complexity. Although those issues turned on the application of principles of contractual construction, which of themselves are not especially difficult, the subject of that construction exercise was a pre-emption clause in the Spar JOA and its application in the context of the Veraciti SPA, which was a very lengthy agreement containing numerous detailed clauses. The complexity of the construction question in that context was confirmed by the fact that the parties made extensive written submissions prior to the hearing and the hearing itself (which was devoted solely to the construction question) took a full day of oral argument.
29 For the avoidance of any doubt, nothing in these reasons should be construed as expressing any view about the reasonableness of the work performed or of the costs charged, or to be charged, to Santos. That assessment is properly a matter for the taxing officer and it is not appropriate for this Court to usurp that role.
5. Why the Defendants' submissions in opposition to the special costs order should be rejected
30 For completeness, it is appropriate to explain briefly why I do not accept the other submissions advanced on behalf of the Defendants in opposition to the application for a special costs order.
31 Counsel for the Defendants submitted that Santos had adduced no evidence to show that the matter required senior counsel, junior counsel and solicitors and clerks who were only available at rates in excess of the maximum scale rates,16 and that 'there is no basis upon which the Court can be satisfied that the matter required representation at rates higher than provided for by the scale'.17 There are two answers to those submissions.
32 First, the submissions proceed on the underlying premise that the inadequacy of each item in the Scale (or the hourly rate charged, if application is made to exceed that permitted in Table A) must be justified by reference to the unusual difficulty, complexity or importance of the work done in respect of that item. As I noted at [10] above, that is not the case.
33 Secondly, given the importance of the matter for Santos, it is not surprising that it sought to engage counsel and solicitors with particular expertise or seniority to act on its behalf. However, for the purpose of the Court's determination whether to make a special costs order under s 280(2) of the LP Act, it is not necessary for an applicant to demonstrate that the hourly rate charged by the counsel and solicitors engaged by the applicant was warranted. That will be a matter for the taxing officer.18
34 Counsel for the Defendants submitted that Santos had not provided the Court with any evidence of any costs agreement entered into between it and its solicitors.19 It is not necessary for evidence of such an agreement to be provided.20 In any event, as counsel for the Defendants appeared to acknowledge,21 it can be inferred from the fact that Santos' counsel and solicitors have charged more than the Scale rates that such a costs agreement exists.
35 In respect of items 1(a) and 1(b), counsel for the defendants submitted that the writ was generally indorsed and is a 'fairly straightforward document'.22 He noted that the difference between the amount charged in respect of the work covered by items 1(a) and (b) of the Scale, and the maximum amount permitted under those items, was only $437.25,23 and submitted that 'the small margin between the costs said to have been actually incurred and the maximum allowable under a relevant item will not usually persuade the Court that the amount allowed under the relevant item is inadequate.'24
36 With respect, it is somewhat surprising, in an action of the nature of this one, that the dispute over costs would descend to quibbling over differences of that quantum. But in any event, it appears that there is an error in Mr Murphy's affidavit, in so far as he deposes at par [8] that a total of 7.5 hours of work was done under this item, but that the charge imposed was $1,306.25. Given his evidence that the work in question was carried out by senior counsel, junior counsel and solicitors, whose hourly rates would result in a much larger total, the $1,306.25 total appears to be an error, and the correct total, based on the content of Mr Murphy's affidavit at par [8] would be $4,940.55. (There was no suggestion that Santos was not charged for the work covered by this item.) Given that the allowance under item 1(a) of the Scale includes an allowance for obtaining instructions, as well as the preparation of the writ itself, I do not see any reason why the limit applicable to this item should not be regarded as inadequate, having regard to the importance and complexity of the matter as a whole.
37 In respect of item 1(c), counsel for the Defendants submitted that the Defendants did not accept that the full amount charged, or all of the work done, would be recoverable under item 1(c) on a party/party basis. However, what is the appropriate allowance on a party/party basis is a matter for the taxing officer. For present purposes, it suffices to note that the Defendants apparently concede25 that based on an objective view of the statement of claim, there is a fairly arguable case to put before the taxing officer that an appropriate allowance under item 1(c) could be more than the scale limit of 10 hours by a senior practitioner.26 That concession is properly made.
38 Counsel for the Defendants submitted that Santos had failed to demonstrate any inadequacy which would be cured by removal of the limit as to the number of hours for getting up under item 17. Similarly, counsel for the Defendants submitted that Santos had not provided any evidence or explanation as to why the scale limits under items 17, 20(a), 20(b), 20(e) and 20(h) were inadequate beyond asserting that the costs charged, or to be charged, exceed the Scale limits.27 Those submissions should be rejected because they are based on the premise that the inadequacy of the Scale limit under each item must be demonstrated as a resulting from the unusual difficulty, or complexity or importance of the work done under that item. That premise must be rejected, for the reasons set out at [10] above.
39 Counsel for the Defendants submitted that in respect of items 17, 20(a) and (b) and 20(e),28 Santos had not provided any justification for the number of hours of work, or the number of practitioners undertaking that work, over and above the Scale limits, having regard to the fact that 'there was no trial bundle, no oral evidence and the trial lasted only 1 day',29 that 'the volume of documents was unexceptional',30 and that 'the trial consisted of legal argument'.31 Those submissions are pertinent to the allowance which should be made by the taxing officer, but not to the Court's determination under s 280(2) of the LP Act. Similarly, the allowance which should actually be made under item 20(h) is properly a matter for the taxing officer.
6. Costs of the Application
40 Santos initially sought an order that the Defendants pay its costs of the Application, to be taxed if not agreed. However, after receiving the submissions filed by the Defendants, Santos' solicitors advised the Court that Santos considered the Defendants' opposition to the Application to be unreasonable (having regard to the observations made by the Chief Justice in Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd32) and that Santos had put the Defendants on notice that if their opposition was maintained, it would seek its costs of the Application on an indemnity basis.
41 In view of the latter indication, I will not make a costs order in respect of the Application without first hearing from the parties. The parties should confer about the terms of that order, with a view to agreeing the terms of an order to be made by consent.
42 Should its solicitors be instructed to pursue an application for costs on an indemnity basis, then in addition to any other matters on which Santos wishes to rely in support of such an application, it will no doubt address the following three matters. First, in the present case, irrespective of the Defendants' attitude to the making of special costs order, it would have been necessary for Santos to make the Application, supported by appropriate evidence, in order to demonstrate to the Court that an order to lift the scale limits under s 280(2) of the LP Act was warranted. It is not apparent why Santos' costs of bringing the Application (whether its party/party or solicitor/client costs) were increased by virtue of the Defendants' subsequent response to the Application. Secondly, an application for an indemnity costs order as a manifestation of the Court's disapproval for a course of conduct33 should not lightly be made by another party to litigation. Thirdly, without very sound justification for seeking such an order, an application for costs on an indemnity basis, made following a successful application for a special costs order, would have all the hallmarks of the worst kind of parasitic costs litigation, which this Court, along with the Court of Appeal, has been at pains to discourage.34
43 The orders of the Court are that:
1. The Plaintiff's costs of the action are to be taxed without the limitations imposed by:
(a) the maximum hourly rates fixed under Table A; or
(b) the maximum allowances for time, number and experience of the fee earners or total costs under items 1, 17 and 20(a), (b), (e) and (h) of Table B,
of the Legal Profession (Supreme Court) Contentious Business Determination 2014 (WA).
2. The costs of the plaintiff's application for a special costs order are reserved to a hearing at 10 am on 2 June 2016.
1Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242.
2Legal Profession Act 2008 (WA) s 280(1); see also s 275(1).
3Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA) cl 9.
4Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA) cl 8.
5Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd[2013] WASCA 66 (S) [3] (the Court), citing Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11] (Martin CJ).
6Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd[2013] WASCA 66 (S) [5] (the Court), citing Grundy v Cassar [No 2] [2012] WASC 103 [50].
7Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S) [9].
8Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [17] - [19] (Martin CJ).
9Kidd v State of Western Australia[2015] WASCA 62 (S) [10] (the Court).
10Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd[2013] WASCA 66 (S) [3] (the Court), citing EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd[2008] WASC 275 (S) [7] and Verdell Pty Ltd v F & G Nominees Pty Ltd[2002] WASC 58 (S2) [14]. See also Flotilla Nominees Pty Ltd v Western Australian Land Authority[2003] WASC 122 (S) [43] (Pullin J).
11Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd[2013] WASCA 66 (S) [5], citing Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [16].
12Atwell v Roberts[2013] WASCA 37 (S) [23] (the Court).
13 See the Minute and Santos' Written Outline of Submissions dated 27 July 2015.
14 See Atwell v Roberts[2013] WASCA 37 (S) [23] (the Court).
15 Plaintiff's Submissions [3(b)].
16 Defendants' Submisisons [3].
17 Defendants' Submissions [6].
18Kidd v State of Western Australia[2015] WASCA 62(S) [13] (the Court).
19 Defendants' Submissions [4].
20Walter v Buckridge [No 5][2012] WASC 495 [56] (Le Miere J).
21 Defendants' Submissions [4].
22 Defendants' Submissions [7].
23 Defendants' Submissions [8].
24 Defendants' Submissions [8], citingKidd v State of Western Australia[2015] WASCA 62 (S) [16] (the Court).
25 The Defendants' Submissions at [12] stated that 'the Plaintiff accepts' but it appears that this was intended to refer to the Defendants.
26 Defendants' Submissions [12].
27 Defendants' Submissions [13], [16], [20].
28 Defendants' Submissions [13], [15], [16], [19], [20].
29 Defendants' Submissions [14].
30 Defendants' Submissions [19].
31 Defendants' Submissions [20].
32Electricity Generation and Retail Trading Corporation trading as Synergy v Woodside Energy Ltd[2014] WASC 469 (S) [29] (Martin CJ).
33Swansdale Pty Ltd v Whitecrest Pty Ltd [2010] WASCA 129 (S) [10] (the Court); Flotilla Nominees Pty Ltd v Western Australian Land Authority[2003] WASC 122 (S) [25] (Pullin J); Brookvista Pty Ltd v Meloni [2009] WASCA 180 [32].
34Electricity Generation and Retail Trading Corporation trading as Synergy v Woodside Energy Ltd[2014] WASC 469 (S) [29] (Martin CJ); Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [21] (Martin CJ); Kidd v State of Western Australia[2015] WASCA 62 (S) [2] (the Court).
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