| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SHANN & ANOR -v- TALBOT & OLIVIER [2003] WADC 213 CORAM : DEANE DCJ HEARD : 24 SEPTEMBER 2003 DELIVERED : 26 SEPTEMBER 2003 FILE NO/S : CIV 4074 of 1999 BETWEEN : IAN DAVID SHANN First Plaintiff
DEBORAH JANE COWLING
Second Plaintiff
AND
TALBOT & OLIVIER
Defendant
Catchwords: Practice and procedure - Costs - Range of damages claimed by plaintiff by way of quantum at trial - Plaintiff successful on issue of liability but unsuccessful in relation to a number of heads of damage - Appropriate costs order
Legislation: Nil
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Result:
Defendant to pay 75 per cent of plaintiffs' costs of the action including reserved costs to be taxed if not agreed Representation:
Counsel:
First Plaintiff : Mr S V Forbes
Second Plaintiff : Mr S V Forbes
Defendant : Mr D R Goodman
Solicitors:
First Plaintiff : Paiker & Overmeire
Second Plaintiff : Paiker & Overmeire
Defendant : Freehills
Case(s) referred to in judgment(s):
Byrns v Davie [1991] 2 VR 568
Permanent Building Society v Wheeler (No2) (1993) 10 WAR 569
Russell Fraser Henderson & Ors v Amadio Pty Ltd & Ors; FCA; BC 9600947; 22 March 1996
Western Australian Cricket Association (1986) ATPR 40-748
Westgold Resources NL v St George Bank Ltd & Ors, unreported; SCt of WA; Library No 980717; 9 December 1998
Case(s) also cited:
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S)
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1 DEANE DCJ: On 12 September 2003 a judgment was delivered in this matter finding that the defendant was liable to the plaintiff and damages were assessed in the sum of $39,700. The defendant's counterclaim against the plaintiffs was dismissed. It should be noted after hearing counsel in short argument regarding the issue of costs on 24 September, it was pointed out and accepted that there was an arithmetical error in the amount of damages awarded to the plaintiff in that it was overstated by approximately $100. It was agreed by the parties, pursuant to the slip rule, that this should be corrected and ultimately judgment entered for the plaintiffs in the sum of $39,600.
2 Although the plaintiffs succeeded on the question of liability and were awarded a sum by way of damages, the defendant now argues that it should not have to pay the whole of the costs of the plaintiffs because they succeeded only in relation to a small and somewhat restricted number of the heads of damages claimed. Viewing the matter in very broad terms and putting aside the question of interest on the damages awarded, counsel for the defendant submitted that the plaintiffs succeeded relevant to a sum of $25,745 in damages awarded, as distinct from damages claimed in the sum of $159,051.19, in other words they succeeded in obtaining only 16.2 per cent of damages claimed which it was said was not a significant success. Further counsel for the defendant submitted that on analysis approximately 20 per cent of the time at trial was spent dealing with issues of quantum. It was not argued, and I do not take the view, that any of the claimed heads of damage made on behalf of the plaintiffs were not arguable or not readily understandable. There is no suggestion that they were misconceived in that sense. 3 Counsel for the defendant, however, advised the Court that with respect to damages claimed, on 9 March 2001 solicitors for the defendant wrote to the plaintiffs' solicitors advising they could not understand how it was that items in the damages schedule were causally linked to the alleged negligence of the defendant in most instances. They requested the plaintiffs' solicitors to advise whether they were willing to provide discovery. Shortly thereafter they applied to compel the provision of further and better particulars but were unsuccessful in obtaining them as Mr Shann filed an affidavit saying that in effect nothing further could be done. Mr Shann in part of his evidence at trial, relevant to the issue of damages, accepted that in a number of instances there was no documentation to support the claim either because he had not been provided with any in the first instance or because despite his searches he had been unable to locate the relevant documentation. Nonetheless counsel for the defendant argued that in this regard the plaintiffs and their
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solicitors were on notice at a very early stage that there were concerns with respect to a number of heads of damages claimed. 4 The Court was informed by counsel for the plaintiffs that a defendant can protect itself in a situation of this nature by making a payment into Court or an O 24A offer. No offer was made in this case on behalf of the defendant, although apparently the plaintiffs made an O 24A offer prior to trial but this did not resolve the matter. That offer was slightly less than twice the amount of damages which the plaintiffs were ultimately awarded. This action it was said demonstrated the reasonableness of the plaintiffs' conduct in that they were attempting to avoid the costs of trial. It must be remembered, however, that this was a matter where liability was hotly disputed and it may well be in the light of that attitude that the defendant was not in a position to respond to the plaintiffs' offer. 5 As I understood counsel at this hearing there is no real argument as to the principles of law that apply in relation to the issue of costs. The general rule pursuant to O 66, r 1(1) whereby the successful party to any action will recover their costs is nonetheless subject to a wide discretion. In Russell Fraser Henderson & Ors v Amadio Pty Ltd & Ors; FCA; BC 9600947; 22 March 1996 it was made plain that a party, whether plaintiff or defendant, is successful but fails on some issues, power exists to make a reduction to account for the costs taken up by the issue on which the ultimately successful party failed. Reference was made to Byrns v Davie [1991] 2 VR 568 in this respect. Reference was also made to Hughes v Western Australian Cricket Association (1986) ATPR 40-748 at 48,136 where Toohey J said: "1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey [1920] 2 KB 47. 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v Farquhar [1893] 1 QB 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact
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or of law. Cretazzo v Lombardi (1975) 13 SASR 4 at 12." 6 In that case Jacobs J sounded a note of caution relevant to applications being made to apportion costs according only to the success or failure of one party or the other on various issues of law or fact arising in the course of the trial. Nonetheless it was conceded in that case that such orders are made from time to time and in this regard reference was made to Westgold Resources NL v St George Bank Ltd & Ors, unreported; SCt of WA; Library No 980717; 9 December 1998 where Anderson J ordered the defendants to pay three quarters of the plaintiff's costs of the action to be taxed because there were issues which took a considerable amount of time at trial and which the trial Judge considered were either not arguable or not understandable. As has been previously pointed out that is not the case in this matter. 7 The Court does have a discretion where a party, though generally successful in an action, has by introduction of some issue or issues upon which it ultimately fails and has thereby increased costs, to order that party to pay the costs of the issue or issues concerned. Pursuant to O 66, r 1(3) the Court can in its discretion order the successful party to pay the costs of the issues where it has been unsuccessful. Whilst there is little or no difficulty in understanding these principles, difficulties can arise in applying them to the facts of a particular case. Applications of this nature necessarily involve a consideration and application of the relevant legal principles, but they also require a practical approach to be adopted in order that the realities of the situation are addressed. As Anderson J observed in Westgold Resources NL & Ors (supra), "The Court should not get involved in an excessively detailed analysis of the various issues in an attempt to make intricate dollar perfect orders. To adopt that practice would be to add an extra dimension to litigation which, by and large, is already these days complicated and expensive enough". The need to ensure substantial justice is done without involving intricate and time consuming teasing out of issues that either failed or succeeded on the pleadings is reflected in his Honour's judgment when he referred to Permanent Building Society v Wheeler (No2) (1993) 10 WAR 569 at 574 where it was noted: "Thus it may be that although it is strictly correct to say that different causes of action are involved, there may have been only one contest in substance. This will often be so when all causes of action arise out of the one course of dealings, the one transaction or the same fact. Where that is a situation, there will
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usually be one order for the general costs of the action, moulded as necessary to ensure that, however rough and ready it may be, substantial justice is done." 8 Regard must also be had to the note of caution sounded by the Court in Russell Fraser Henderson & Ors v Amadio (supra) that: "One should guard against cost orders that prevent someone from litigating an issue which should properly be litigated even if it doesn't succeed it doesn't mean it shouldn't be included." In this matter damages were claimed under four distinct heads to which a schedule related. In respect of item A, being a claim for legal expenses, the plaintiffs failed in relation to their claimed damages in items A(1), A(2), A(3), A(4), part of item A(5), A(7), A(9), A(10) and A(11). 9 Item B(1) was a claim for $25,000 relevant to settlement damages/fees comprising the legal costs of Sly & Weigall, who acted for Mr Wiltshire and Ms Rowland and whose costs upon settlement of the matter the plaintiffs paid by way of bank cheque. This item of damages as well as item B(2), being an amount of $244.75 for stamp duty on a deed of compromise, were allowed. 10 The plaintiffs failed to establish he was entitled to an award of damages pursuant to item C(2) to item C(5) inclusive relating to claimed loss of practice income for the periods of time in which Mr Shann was absent from his legal practice in order to travel to Bali to recover, or to attempt to recover, the property in Ubud and evict Dr Van Kampen. Significantly the plaintiffs also failed to establish their claim to damages under item C(1) being a claim for rental loss or loss of income from the property in Ubud between December 1993 and September 1998 when Dr Van Kampen remained in residence. The claim was based on rental of US$1,050 per month. Overall a claim in the vicinity of damages for $84,020.62 was made relevant to this head of damage. In short the plaintiffs failed to establish that the loss was in any way caused or connected with the negligence of the defendant. 11 Finally the plaintiffs failed to establish their claim for damages under item D(1) to (4), being for Indonesian travel expenses covering four trips and associated accommodation to Bali relevant to attempts to either evict Dr Van Kampen from the premises in Ubud or to progress the matter in some way in the Indonesian courts. From the above analysis it can be seen that the plaintiffs were largely unsuccessful in establishing their
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claim for an award of damages under a significant number of heads of damage. 12 Ultimately, in my view, it is not possible to say that the length of the trial would have been substantially reduced if it had been limited in relation to quantum to those heads of damage in relation to which the plaintiffs were successful, despite the concerns raised sometime prior to trial by the defendant's solicitors. 13 The plaintiffs were successful on the issue of liability, which was a central issue in the trial, but in all of the circumstances it remains the fact that the plaintiffs succeeded on a comparatively narrow range of issues relevant to the question of quantum and in my view this failure or lack of success should be reflected in an appropriate manner in the costs order made. This view is in no way intended to ignore the important consideration that a plaintiff does not always succeed on every issue at trial. 14 I do not consider that it is possible to be mathematically precise in moulding an order for costs in an application of this nature, but in exercising its discretion the Court must do the best it can in order to attempt to ensure that justice is done to both parties to the action. I consider that a proper exercise of the Court's discretion in relation to costs is reflected in an order that the plaintiffs recover 75 per cent of their costs. 15 There will therefore be formal orders in the following terms: 1. There be judgment for the plaintiffs in the sum of $39,600. 2. If the defendant do pay 75 per cent of the plaintiffs' costs of the action including reserved costs to be taxed if not agreed. 3. There be a certificate for the costs of the transcript for the January portion of the trial, namely 21-24 January 2002. 4. The Taxing Officer be directed to make reasonable allowance for the further preparation by counsel for the resumption of the trial on 5 June 2002. <>
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