Secure Parking (WA) Pty Ltd v Wilson

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


Link to Appeal :

SUPREME COURT OF WESTERN AUSTRALIACitation No:[2005] WASC 264 (S)
Case No:CIV:1074/200315-17 AUGUST, 5-8 SEPTEMBER, 14 OCTOBER 2005
Coram:LE MIERE J7/12/05
31/03/06
14Judgment Part:1 of 1
Result: Costs orders made
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…
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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.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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