SARACENI -v- JONES [2012] WASCA 59 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 59 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:113/2011	Heard:	ON THE PAPERS
Coram:	MARTIN CJ McLURE P NEWNES JA	Delivered:	1/03/13
No of pages:	6	Judgment Part:	1 of 1
Result:	Costs order construed
Category:	B
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Parties:	LUKE SARACENI MARTIN BRUCE JONES AS RECEIVER AND MANAGER OF NEWPORT SECURITIES PTY LTD AND AS AGENT OF THE MORTGAGEE IN POSSESSION OF 3517 ROAD, WILYABRUP DARREN GORDON WEAVER AS RECEIVER AND MANAGER OF NEWPORT SECURITIES PTY LTD AND AS AGENT OF THE MORTGAGEE IN POSSESSION OF 3517 CAVES ROAD, WILYABRUP ANDREW JOHN SAKER AS RECEIVER AND MANAGER OF NEWPORT SECURITIES PTY LTD AND AS AGENT OF THE MORTGAGEE IN POSSESSION OF 3517 CAVES ROAD, WILYABRUP MARTIN BRUCE JONES AS RECEIVER AND MANAGER OF MAYPORT NOMINEES PTY LTD DARREN GORDON WEAVER AS RECEIVER AND MANAGER OF MAYPORT NOMINEES PTY LTD ANDREW JOHN SAKER AS RECEIVER AND MANAGER OF MAYPORT NOMINEES PTY LTD MARTIN BRUCE JONES AS RECEIVER AND MANAGER OF SEAPORT PTY LTD JOHN ROSS LINDHOLM AS RECEIVER AND MANAGER OF SEAPORT PTY LTD COMMONWEALTH ATTORNEY-GENERAL
Catchwords:	Costs Indemnity costs Solicitor and client costs Special costs Meaning of 'reasonable costs incurred'
Legislation:	Legal Profession Act 2008 (WA), s 280 Rules of the Supreme Court 1971 (WA), O 66 r 11
Case References:	Flotilla Nominees Pty Ltd v Western Australian Land Authority (2003) 28 WAR 95 Re Bond Corporation Holdings Ltd (1990) 1 WAR 465 Saraceni v Jones [2012] WASCA 59 Spencer v Dowling [1997] 2 VR 127 Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SARACENI -v- JONES [2012] WASCA 59 (S) CORAM : MARTIN CJ

McLURE P

NEWNES JA

HEARD : ON THE PAPERS DELIVERED : 1 MARCH 2013 FILE NO/S : CACV 113 of 2011 BETWEEN : LUKE SARACENI

Applicant

AND

MARTIN BRUCE JONES AS RECEIVER AND MANAGER OF NEWPORT SECURITIES PTY LTD AND AS AGENT OF THE MORTGAGEE IN POSSESSION OF 3517 ROAD, WILYABRUP

First-named First Respondent

DARREN GORDON WEAVER AS RECEIVER AND MANAGER OF NEWPORT SECURITIES PTY LTD AND AS AGENT OF THE MORTGAGEE IN POSSESSION OF 3517 CAVES ROAD, WILYABRUP

Second-named First Respondent

ANDREW JOHN SAKER AS RECEIVER AND MANAGER OF NEWPORT SECURITIES PTY LTD AND AS AGENT OF THE MORTGAGEE IN POSSESSION OF 3517 CAVES ROAD, WILYABRUP

Third-named First Respondent

(Page 2)

MARTIN BRUCE JONES AS RECEIVER AND MANAGER OF MAYPORT NOMINEES PTY LTD

First-named Second Respondent

DARREN GORDON WEAVER AS RECEIVER AND MANAGER OF MAYPORT NOMINEES PTY LTD

Second-named Second Respondent

ANDREW JOHN SAKER AS RECEIVER AND MANAGER OF MAYPORT NOMINEES PTY LTD

Third-named Second Respondent

MARTIN BRUCE JONES AS RECEIVER AND MANAGER OF SEAPORT PTY LTD

First-named Third Respondent

JOHN ROSS LINDHOLM AS RECEIVER AND MANAGER OF SEAPORT PTY LTD

Second-named Third Respondent

COMMONWEALTH ATTORNEY-GENERAL

Intervener

Catchwords:

Costs - Indemnity costs -…

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 Saraceni v Jones

Details

AGLC: Saraceni v Jones [2012] WASCA 59 (S)
Case: [2012] WASCA 59 (S)
Decision Date

CaseChat Overview and Summary

The Court of Appeal in Western Australia was asked to construe a costs order made by consent between the parties in the proceedings Saraceni v Jones. The costs order stipulated that the applicant would pay the respondents' reasonable costs incurred in the proceedings to be taxed if not agreed. The respondents submitted a bill of costs, which the applicant contested on the grounds that the costs order did not permit the respondents to claim costs above the applicable costs scale item limit. The Court of Appeal was tasked with determining whether the costs order denoted indemnity costs or solicitor and client costs, and if the order allowed the respondents to claim costs beyond the maximum hourly and daily rates set out in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010. The Court of Appeal found that the terms of the costs order did not support an interpretation of indemnity costs or a special costs interpretation that would allow the respondents to claim costs above the applicable costs scale item limit. The Court concluded that the respondents should pay the applicant's costs of the application to be taxed.

The Court of Appeal found that the costs order did not denote indemnity costs, as the context, conduct of the proceedings, and terms of the order did not align with an objectively determined intention to provide for indemnity costs. The Court further held that the expression 'reasonable costs incurred' in the costs order should not be construed to mean costs on a solicitor and client basis. The Court found that there was little practical difference between the standard order for indemnity costs and an order allowing costs reasonably incurred on a solicitor and client basis, and neither construction found support in the terms of the costs order. Additionally, the Court found that the terms of the costs order did not support an interpretation that the maximum hourly rates provided for in the Determination be removed, and therefore the respondents were not entitled to claim costs at hourly rates greater than those set in the Determination. The Court concluded that the preliminary issues should be answered in the negative and that the respondents should pay the applicant's costs of the application to be taxed.

Orders