Silvano Defendi as trustee for Defendi Family Trust v SZIGLIGETI

[2019] WADC 12

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   SILVANO DEFENDI as trustee for DEFENDI FAMILY TRUST -v- SZIGLIGETI [2019] WADC 12

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   8 JANUARY 2019

DELIVERED          :   31 JANUARY 2019

FILE NO/S:   APP 18 of 2017

BETWEEN:   SILVANO DEFENDI as trustee for DEFENDI FAMILY TRUST

Appellant

AND

IREN SZIGLIGETI

Respondent

Catchwords:

Practice and procedure objections to taxation

Legislation:

Rules of the Supreme Court 1971 O 66 r 53

Result:

Objection successful in part

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms M Acanda

Solicitors:

Appellant	:	Not applicable
Respondent	:	Maryse Acanda Lawyers

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

Nil

DEPUTY REGISTRAR HEWITT:

1. This appeal was commenced by a notice of appeal which lodged on 22 March 2017.  The matter was argued on 31 January 2018 and 17 August 2018, and her Honour Judge Vernon delivered a decision dismissing the appeal and awarding the respondents the costs of the appeal.  On 4 December 2018 the respondents filed a bill of costs for taxation and that bill came on before me on 8 January 2019.  At the conclusion of the taxation I held my certificate open to allow either party to bring in an objection.  The appellant has brought in an objection and it is that objection with which I shall deal. 

2. The first objection is that there is an arithmetic error made in the calculation of the amount due to be paid by the plaintiff to the defendant. That objection is soundly based. The bill contained schedules which supported the items contained in the bill itself and I noted a deduction of $700 from item 7 on the schedule but failed to carry that deduction through to the bill itself as a consequence of which the bill was allowed at $700 more than it should have been and the taxing fee was likewise increased. That constitutes an error which should be corrected and shall be corrected and I shall refer to the effect on the bill at the conclusion of these reasons. The remainder of the objection is in essence a complaint that the amounts which have been allowed are higher than they should be. In that regard it is necessary to consider the basis upon a review of taxation is to be conducted. The relevant provision is found in the Rules of the Supreme Court, O 66 r 53 which is in the following terms:

   Party dissatisfied with taxation may object and apply for review

   (1)A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the taxing officer - 

   (a)deliver to the other party interested in the allowance or disallowance and carry in before the taxing officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections; and

   (b)thereupon apply to the taxing officer to review the taxation in respect of those items or parts.

   (2)Pending the consideration and determination of objection, the taxing officer may if he thinks fit issue a certificate of taxation for or on account of the remainder or of part of the bill of costs.  Any further certificate which may be necessary shall be issued by the taxing officer after his decision upon the objection.

3. It will be seen from the context of the rule that it is necessary for a party wishing to object to identify an error in principle in allowing or disallowing any item or part of an item.  The present objection simply recite the appellant's view of the appropriate calculations which should have been made and the outcome were those calculations to have been made in the manner propounded.  That is not an error in principle, no principle is identified which is said to have been infringed.  The objection simply is a repetition of the arguments which were advanced at the hearing of the taxation which were not wholly accepted at the taxation although some deductions were made.  Other matters which are raised concern some suggestions that the taxing party failed to respond to overtures to settle the matter but those matters are irrelevant to the issues before me. 

4. In my view the task which was confronted by the respondent's solicitors was considerable.  She was not counsel at the original trial of this matter in the Magistrates Court and it was therefore necessary for her to obtain a copy of the full transcript and peruse that transcript in order to properly appreciate the issues which she needed to address.   Additionally there was an application, which was allowed, to admit further evidence at the hearing of the appeal and significant amendments to the grounds of appeal. 

5. I am satisfied that the task presented to the respondent's solicitors in the conduct of this appeal was considerable and time consuming and furthermore I am conscious of the fact that although a senior practitioner, the solicitor for the respondent, has not charged the maximum hourly rate and has instead charged at $350 per hour.

6. On my analysis of the appellant's objections they are simply a slightly more particularised version of the arguments which were presented at the taxation which I considered and did not uphold in full.  Therefore insofar as the appellant's seeks to contest the matter of quantum on the grounds which are expressed in his notice of objection they fail to identify any error at principle and are not upheld. 

7. I now return to the first aspect of the objection that being the arithmetical error.  The total of the bill was $14,609 and taking into the account the additional $700 which should have been taxed off but which was not a total of $4,900 should be deducted leaving a balance of $9,709.  That amount attracts a filing fee of $220 and a total of $462.73 when one takes into account the taxing fee.  As a result of those calculations the proper amount for which the bill should have been allowed was $10,171.73 and that it is the amount that I allow on this bill and I shall sign the certificate upon the date of issue of these reasons. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

LF
Court Officer

31 JANUARY 2019