Singh v Kaur Bal
[2011] WASC 303 (S)
•11 NOVEMBER 2011
SINGH -v- KAUR BAL [2011] WASC 303 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 303 (S) | |
| Case No: | CIV:1009/2005 | 714 SEPTEMBER 2011; 11 NOVEMBER 2011 | |
| Coram: | BEECH J | 11/11/11 | |
| 15/11/11 | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | No order as to costs | ||
| B | |||
| PDF Version |
| Parties: | SARDUL SINGH TEESHALDIP KAUR BAL MAN MAHAN SINGH INDERJIT KAUR HARBHAJAN SINGH SATWANT KAUR BAL |
Catchwords: | Costs Plaintiff partially successful against some defendants and unsuccessful against other defendants Defendants represented by one set of lawyers Costs of the action Appropriate costs orders |
Legislation: | Rules of the Supreme Court 1971 (WA) O 66 r 1, O 66 r 2 |
Case References: | Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) Cerini v The Minister for Transport [2001] WASC 309 (S) Chen v Chan [2009] VSCA 233 Keet v Ward [2011] WASCA 139 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 Singh v Kaur Bal [2011] WASC 303 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 15 NOVEMBER 2011 FILE NO/S : CIV 1009 of 2005 BETWEEN : SARDUL SINGH
- Plaintiff
AND
TEESHALDIP KAUR BAL
First Defendant
MAN MAHAN SINGH
Second Defendant
INDERJIT KAUR HARBHAJAN SINGH
Third Defendant
SATWANT KAUR BAL
Fourth Defendant
Catchwords:
Costs - Plaintiff partially successful against some defendants and unsuccessful against other defendants - Defendants represented by one set of lawyers - Costs of the action - Appropriate costs orders
(Page 2)
Legislation:
Rules of the Supreme Court 1971 (WA) O 66 r 1, O 66 r 2
Result:
No order as to costs
Category: B
Representation:
Counsel:
Plaintiff : Mr E Carlose
First Defendant : Mr G D Cobby
Second Defendant : Mr G D Cobby
Third Defendant : Mr G D Cobby
Fourth Defendant : Mr G D Cobby
Solicitors:
Plaintiff : Eapon Carlose
First Defendant : S S Sandhu
Second Defendant : S S Sandhu
Third Defendant : S S Sandhu
Fourth Defendant : S S Sandhu
Case(s) referred to in judgment(s):
Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S)
Cerini v The Minister for Transport [2001] WASC 309 (S)
Chen v Chan [2009] VSCA 233
Keet v Ward [2011] WASCA 139
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569
Singh v Kaur Bal [2011] WASC 303
(Page 3)
1 BEECH J:
Introduction
2 On 11 November 2011 I delivered my reasons on the trial of this action: Singh v Kaur Bal [2011] WASC 303.
3 Initially, the plaintiff sought costs orders in his favour. During submissions, his counsel was content not to oppose an order that there be no orders as to costs. The defendants seek an order that the plaintiff pay 80% of their costs of the action.
4 I will begin by summarising the claims made in the action, and the result of the trial. I will then outline the relevant legal principles before explaining why I consider that there should be no order as to costs.
The plaintiff's claim and the result of the action
5 In these reasons I will adopt the abbreviations and terminology used in my primary reasons.
6 In the action, the plaintiff (Sardul) made four claims, one of which was upheld. Sardul claimed that each of the Kinross Transfer and the Share Transfer was made with intent to defraud creditors and was voidable under s 89 of the Property Law Act 1969 (WA). He was successful in relation to the Kinross Transfer and unsuccessful in relation to the Share Transfer. Sardul also made two claims of the tort of conspiracy. The first was a conspiracy between Man Mahan, Satwant and Teeshaldip; the second a conspiracy between Man Mahan, Inderjit and Satwant. The conspiracy claims were dismissed.
7 Against Teeshaldip, Sardul claimed a variety of relief in relation to the Kinross Transfer. He claimed a declaration that Teeshaldip holds a half share of the Kinross Property on constructive trust for himself. He also claimed a declaration that she holds as constructive trustee for him all sums received by her from using the Kinross Property or the Success Property or the Wellard Property as security for the purchase price for any of the properties, and an order that Teeshaldip account to Sardul for those sums.
8 In the result, the relief I granted was an order that Teeshaldip pay $75,000 to the official trustee in bankruptcy, and that her interest in the Kinross Property be charged with payment of that sum.
(Page 4)
General principles
9 The court's costs discretion under s 37 of the Supreme Court Act 1935 (WA) and O 66 of the Rules of the Supreme Court 1971 (WA) is broad.
10 Order 66 r 1(1), r 1(2) and r 1(3) are in the following terms:
1. General rules as to costs
(1) Subject to the express provisions of any statute and of these Rules the costs of and incidental to all proceedings including the administration of estates and trusts shall be in the discretion of the Court but, without limiting the general discretion conferred on the Court by the Act, and subject to this Order, the Court will generally order that the successful party to any action or matter recover his costs.
(2) If the Court is of opinion that the conduct of a party either before or after the commencement of the litigation or that a claim by a party for an unreasonably excessive amount has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs wholly or in part, and may further order him to pay the costs of an unsuccessful party either wholly or in part.
(3) Where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs the Court may order such party to pay the costs of such issue or issues.
It is clear that while the court has a broad discretion as to costs, generally costs will follow the event: Rules of the Supreme Court 1971 (WA), O 66 r 1(1). It is incumbent upon the unsuccessful party to satisfy the court that there are good reasons why it should not pay the other party's costs: Nikolaou v Papasavas, Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394, 407.
The court may, in the exercise of its discretion, order that a successful party recover only a portion of its costs where that party has been unsuccessful in respect of certain discrete issues. But that should not be done as a matter of course. To embark as a general practice upon an analysis of which party was successful on each issue, or necessarily to deprive a successful party of some portion of its costs if it has lost on a particular issue, would be likely to add further uncertainty and complexity to the outcome of litigation, derogate from the prospect of settlement, and
(Page 5)
- oblige the court to hear lengthy and frequent arguments in relation to costs as an additional burden on its resources and the costs of the parties: see MacKinnon v Petersen (Unreported, NSWSC, 19 April 1989) (Cole J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] - [68] (McHugh J). Litigation is time-consuming, expensive and burdensome enough already.
In addition, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 [24].
In Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S), the position was put as follows:
'[T]he power to adjust an order for costs by reference to particular issues upon which the generally successful party has failed, is properly exercised only where there are discrete and severable issues upon which the generally successful party has failed, and which have added to the cost of the proceedings in a significant and readily discernible way [7].'
In the absence of any special order -
(a) where the statement of claim contains more than one cause of action and the plaintiff succeeds on one or more causes of action and the defendant succeeds on another or others, costs shall be allowed to the plaintiff on the cause or causes of action on which he succeeds and to the defendant on that or those on which he succeeds, in the same manner as if separate actions had been brought.
13 The effect of O 66 r 2(a) is that a defendant is prima facie entitled to its costs on causes of action on which the plaintiff fails. However, such an order is not made as of course. The court looks at the realities of the case and attempts to do justice. Where all causes of action arise out of the one course of dealings with the same facts, there would 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': Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569, 574 - 575. That is the approach which I propose to take in relation to this action.
(Page 6)
14 The following propositions, relevant to O 66 r 2(a), were stated by the Court of Appeal in Keet v Ward [2011] WASCA 139 [24]:
(a) the expression 'cause of action' in O 66 r 2(a) is a reference to a factual situation, the existence of which entitles the plaintiff to obtain a remedy: Letang v Cooper [1965] 1 QB 232, 242 (Diplock LJ); Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569, 572 (Anderson J);
(b) the rule does not provide an inflexible rule which prescribes a mandatory approach to the awarding of costs in cases where there are multiple causes of action. The opening words 'in the absence of any special order' indicate that the court retains the discretion to make a special order departing from the rule in O 66 r 2(a): Kimpura Pty Ltd v JWH Group Pty Ltd [2004] WASCA 134 [12] - [15];
(c) however, where there are multiple causes of action and a party has succeeded on only one or some, the other party is prima facie entitled to costs on the others but the court will always attempt to do substantial justice in the circumstances: Permanent Building Society v Wheeler (No 2) (574 - 575) (Anderson J);
(d) it may not be appropriate to make a costs order in accordance with O 66 r 2(a) where there is in substance one contest, that is, where the causes of action arise from the one course of dealings, the one transaction or the same facts: Permanent Building Society v Wheeler (No 2) (574 - 575); R J Baker Nominees Pty Ltd v Parsons Management Group Pty Ltd [2009] WASC 206 (S); Witcombe v Talbot & Olivier [No 2] [2009] WASC 173 (S) (Beech J).
15 I also apply the following principles stated by the Victorian Court of Appeal in Chen v Chan [2009] VSCA 233 [10]:
(1) The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.
(2) The Rules of Court permit significant flexibility in determining questions of costs. In particular, the court is entitled to examine the realities of the case and will attempt to do 'substantial justice' as between the parties on matters of costs.
(3) Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.
(Page 7)
- (4) A court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.
(5) Where a court determines to make an order apportioning costs, then it does so primarily as 'a matter of impression and evaluation', rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.
(6) Where a number of parties have had the same representation, there is a 'rule of thumb' as to the apportionment of costs, namely that, where some of those parties have been successful and others have not, each successful party is only entitled to his or her proportion of the costs incurred on behalf of all, plus the costs, if any, incurred exclusively on his or her behalf. The primary issue for determination in such a case is that of fairness as between the parties, having regard to the manner in which the trial, or appeal, has been conducted. (footnotes omitted)
The proper exercise of the costs discretion
16 The defendants were, quite properly, represented by one set of lawyers. I apply the rule of thumb stated in Chen v Chan, set out above.
17 In my opinion, the four defendants should not be taken to share an equal proportion of the one set of costs incurred between them. In my view, Teeshaldip and Man Mahan were the major defendants, taking into account the various claims made, and the way those claims were defended. I consider that, together, they should be treated as having incurred two thirds of the defendants' costs, with Inderjit and Satwant together incurring the remaining one third. In other words, I would apportion the defendants' joint costs by allocating one third to Teeshaldip, one third to Man Mahan, one sixth to Inderjit and one sixth to Satwant.
18 Inderjit and Satwant were successful in the action. The starting point is that Sardul should pay their costs of the action. In my view, there is nothing to warrant a departure from that approach. In particular, I am not persuaded that the fact Inderjit was unsuccessful in advancing her s 89(3) claim warrants a departure from the usual approach. The case against her was fundamentally legally flawed from the outset, for the reasons explained in my primary reasons at [97] - [110].
19 The position in relation to Teeshaldip and Man Mahan is less clear. In summary, I consider that Sardul had some success against them, but
(Page 8)
- was by no means entirely successful. That takes into account the following matters.
20 First, the conspiracy claims against Man Mahan, and the conspiracy claim against Teeshaldip, were unsuccessful.
21 Secondly, Sardul claimed substantially greater relief against Teeshaldip than he obtained: see [7] - [8] above. The relief granted was not relief of a kind claimed, or suggested in submissions, by Sardul.
22 Thirdly, nevertheless, the fact remains that Sardul succeeded in establishing his claim under s 89 in relation to the Kinross Transfer. Although Sardul did not succeed in obtaining the various forms of relief he claimed, he did obtain relief in relation to the Kinross Transfer. Teeshaldip and Man Mahan defended the claim on the basis that the Kinross Transfer had not caused prejudice to creditors. They failed in that contention. Sardul was granted relief in relation to the Kinross Transfer. There is no evidence that Teeshaldip ever offered anything to Sardul in satisfaction of his claim in relation to the Kinross Transfer.
23 Counsel for the defendants emphasised that, the day before the trial commenced, Man Mahan admitted that he made the Kinross Transfer with intent to defraud. He submits that, consequently, Man Mahan was in substance a defendant only in relation to the conspiracy claim, and was no more than a witness in relation to the s 89 claims.
24 I do not accept that contention. Man Mahan was a necessary and proper party to the s 89 claim. He denied that the alienation was voidable at the suit of Sardul in that he denied that the alienation prejudiced creditors. He was unsuccessful in that defence, and a declaration was made.
25 I also take into account that some of Sardul's costs relate to his unsuccessful claims against Inderjit and Satwant.
26 Taking into account the various claims made, the result of the action against all four defendants, and the conduct of the trial, I consider that Teeshaldip and Man Mahan should jointly pay one third of Sardul's costs of the action.
27 One way of giving effect to these conclusions would be to order that Teeshaldip and Man Mahan pay one third of Sardul's costs, and to order that Sardul pay one third of the defendants' costs.
(Page 9)
28 That order would result in the potential for the taxation of two sets of costs: the plaintiff's and the defendants'. Given the history between these parties, there is every reason to expect that agreement on costs would not be reached, and taxation would be necessary. Where there has been mixed success, the court can take into account the complications that are likely to arise in the taxation of costs as part of the consideration of the overall interests of justice. Against the background of the numerous acrimonious pieces of litigation between these parties, I consider that the interests of justice and the public interest favour avoiding the need for taxation if that is a course reasonably open. I note that a similar approach was taken by Parker J in Cerini v The Minister for Transport [2001] WASC 309 (S) [43] - [44], although in rather different circumstances.
29 To treat the costs orders in each party's favour as effectively cancelling each other out obviously involves a 'rough and ready' approach, because the two sets of taxed costs of each party will not be the same. Further, I do not overlook that the defendants were unrepresented for a large part of the interlocutory period, and were represented by both solicitor and counsel at the trial. Nevertheless, in all the circumstances of this case, I think an order that there be no order as to costs accords with the justice of the case. In circumstances where the plaintiff and defendants each had one set of costs, and each side had some measure of success, I do not accept the defendants' submission that the result of the action calls for some proportion of the costs of the action to be paid by Sardul.
Conclusion
30 For these reasons, I order that there be no order as to the costs of the action.
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