SECURE PARKING (WA) PTY LTD -v- WILSON & ANOR [2005] WASC 264 (S)

Link to Appeal :

[2006] WASCA 200

[2008] WASCA 268

[2009] WASCA 78 [2009] WASCA 78 [2008] WASCA 268

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 264 (S)
Case No:	CIV:1074/2003	Heard:	15-17 AUGUST, 5-8 SEPTEMBER, 14 OCTOBER 2005
Coram:	LE MIERE J	Delivered:	7/12/05
Supplementary Delivered:	31/03/06
No of pages:	14	Judgment Part:	1 of 1
Result:	Costs orders made
Category:	B
PDF Version

Parties:	SECURE PARKING (WA) PTY LTD (ACN 073 500 160) ALFRED KARL WILSON NULLAGINE INVESTMENTS PTY LTD (ACN 008 729 717)
Catchwords:	Costs Indemnity costs Whether rejection of Calderbank offer reasonable Separate bills of costs Certificate for second counsel Whether instruction of senior counsel reasonable Special order for costs Whether scale of costs inadequate due to matter's complexity Whether agreed statement of facts and objections to witness statements form part of getting up case for trial and brief fee
Legislation:	Legal Practice Act 2003 (WA), s 210, s 215 Legal Practitioners Act 1893 (WA), s 58M, s 58W Rules of the Supreme Court 1971 (WA), O 66
Case References:	Eastland Technology Australia Pty Ltd & Ors v Whisson & Ors [2002] WASC 150 Loveday v Renton (No 2) [1992] 3 All ER 184 Optus Networks Pty Ltd v Leighton Contractors Pty Ltd [2002] NSWSC 450 Stanley v Phillips (1966) 115 CLR 470 Calderbank v Calderbank [1975] 3 All ER 333 SDS Corporation Ltd v Pasdonnay Pty Ltd & Anor [2004] WASC 26 (S2) Tickell v Trifleska Pty Ltd (1991) NSWLR 353

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : SECURE PARKING (WA) PTY LTD -v- WILSON & ANOR [2005] WASC 264 (S) CORAM : LE MIERE J HEARD : 15-17 AUGUST, 5-8 SEPTEMBER, 14 OCTOBER 2005 DELIVERED : 7 DECEMBER 2005 SUPPLEMENTARY
DECISION : 31 MARCH 2006 FILE NO/S : CIV 1074 of 2003 BETWEEN : SECURE PARKING (WA) PTY LTD (ACN 073 500 160)

Plaintiff

AND

ALFRED KARL WILSON

First Defendant

NULLAGINE INVESTMENTS PTY LTD (ACN 008 729 717)

Second Defendant

(Page 2)

Catchwords:

Costs - Indemnity costs - Whether rejection of Calderbank offer reasonable - Separate bills of costs - Certificate for second counsel - Whether instruction of senior counsel reasonable - Special order for costs - Whether scale of costs inadequate due to matter's complexity - Whether agreed statement of facts and objections to witness statements form part of getting up case for trial and brief fee

Legislation:

Legal Practice Act 2003 (WA), s 210, s 215

Legal Practitioners Act 1893 (WA), s 58M, s 58W
Rules of the Supreme Court 1971 (WA), O 66

Result:

Costs orders made

Category: B

Representation:

Counsel:

Plaintiff : Mr M J McPhee

First Defendant : Mr M H Zilko SC

Second Defendant : Mr M H Zilko SC

Solicitors:

Plaintiff : Michell Sillar McPhee

First Defendant : Tottle Partners

Second Defendant : Jackson McDonald

(Page 3)

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

Eastland Technology Australia Pty Ltd…

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 264 (S)
Decision Date

CaseChat Overview and Summary

Secure Parking (WA) Pty Ltd brought proceedings against Alfred Karl Wilson and Nullagine Investments Pty Ltd in the Supreme Court of Western Australia, seeking a declaration that the defendants assign a lease to the plaintiff. The defendants denied liability, asserting that the plaintiff had not fulfilled the terms of the lease, particularly by not providing financial statements of its directors. The defendants also sought indemnity costs based on a rejected compromise offer. The court dismissed the plaintiff's action on 7 December 2005 and subsequently heard arguments on costs on 14 October 2005. The second defendant argued for indemnity costs due to the plaintiff's rejection of a compromise offer, which the court found not to warrant such costs as the plaintiff's rejection was reasonable given the terms of the offer. The defendants were separately represented by solicitors but jointly by counsel, a representation deemed reasonable considering the potential for joint defence. The court decided against taxing the defendants' costs as one bill but allowed a single counsel fee, acknowledging the reasonableness of separate representation initially. The court also rejected the defendants' request for a certificate for two counsels, noting the inapplicability of the current legal costs determination to such a scenario. However, it granted a special order to tax the defendants' counsel fees at the senior counsel rate, considering the case's complexity and the defendants' reasonable instruction of senior counsel. The court declined to remove the limits for getting up the case for trial and giving discovery of documents, finding the scale adequate despite the case's complexity. It also denied additional costs for obtaining a transcript and preparing agreed statements of facts and objections to evidence, ruling these activities as part of the counsel's standard duties covered by the brief fee.

Orders