Skypoint Investments Pty Ltd v Gavranich
[2004] WADC 189
•17 SEPTEMBER 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: SKYPOINT INVESTMENTS PTY LTD -v- GAVRANICH & ANOR [2004] WADC 189
CORAM: DEPUTY REGISTRAR HARMAN
HEARD: NOT APPLICABLE
DELIVERED : 17 SEPTEMBER 2004
FILE NO/S: CIV 35 of 2004
BETWEEN: SKYPOINT INVESTMENTS PTY LTD
Plaintiff
AND
BOZENKO GAVRANICH
CAROL JEANETTE GAVRANICH
Defendants
Catchwords:
Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation - Jurisdiction
Legislation:
Nil
Result:
Grounds for review insufficient
Representation:
Counsel:
Plaintiff: No appearance
Defendants: No appearance
Solicitors:
Plaintiff: Paiker & Overmeire
Defendants: TRM Legal Services
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
DEPUTY REGISTRAR HARMAN: The plaintiff obtained an order for its costs of the action. Those costs were taxed and the defendant has now lodged a notice seeking to review certain determinations made in the course of determining the extent of the plaintiff's recovery.
The procedure for review of such determinations is not generally available. Rule 53 provides jurisdiction in the following terms.
"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 the item is signed,…"
In order to establish a basis for review it is fundamental that the objecting party identifies the item in relation to which the contended flawed determination was made.
Paragraph 1 of the notice refers to the error as being the failure to take into account the relative lack of complexity in the action. Paragraph 2, the failure to sight the costs agreement and accounts of the plaintiff's solicitor. Paragraph 3, although not expressed by reference to error, contends that an hourly rate of $250 should have been set for the work performed. Paragraph 10 asserts that the total of the amounts determined as being recoverable under the order is excessive.
None of those paragraphs identify the items or parts of items the subject of determinations to which the defendant takes objection. They do not propose that any item or part of an item the subject of allowance should have been disallowed. They do not articulate any error in principle. They do not come within r 53.
Paragraph 4 refers to the determination made in relation to the claim for the statement of claim. At taxation, there having been no issue raised as to the allowance of the item, the only determination made in relation to the claim was as to quantum. Rule 53 does not provide jurisdiction to review alleged errors made in relation to quantum. I accept that jurisdiction to review quantum determinations has been found by judges. In my opinion it is not for a taxing officer to determine that he has jurisdiction when the only source of jurisdiction to review does not so provide. I would add that it is my understanding that on those occasions that judges have found jurisdiction, the test of the existence of reviewable error has been that no taxing officer acting reasonably could have made the determination. The defendant does not so contend.
Paragraph 5 relates to both the allowance of the item for attendance in chambers on 25 May 2004 and the amount recoverable under that allowance. The relevant service was provided to the plaintiff in response to the parties having been called before a Registrar on a "summons for directions following default in case timetable". No order was made on that summons other than that "the defendant pay the plaintiff's costs of today".
The first ground of objection is that item 24 of the scale under which the claim was made was not the appropriate datum for its taxation. I agree. I doubt that at taxation any attention was given to that aspect of the claim. Had it been, the issue now raised by the defendant would have precipitated the result that the correct item under which the claim would be taxed being recorded. As to the item, the fact that the order was made establishes the plaintiff's entitlement. The fact that the claim referred to the wrong item is of no significance.
As to quantum, I was familiar with the nature of the service to which the claim related. Claims for recovery for the service are regular features in the taxation of bills. There is no doubt in my mind that upon reading the description of the service as "directions hearing" the claim would have been assessed under item 23 regardless of the reference to item 24.
The next part of the objection is that as the attendance was only some 15 minutes, a lesser amount was recoverable. Unlike claims under item 24, claims under item 23 are not expressed as being appropriately assessed on the basis of time spent. The determination to be made under item 23 is of the value of the service provided to the plaintiff. Item 24 is one of the few items in the scale that require the taxing officer to determine the extent of recovery on the basis of time spent on what the taxing party has chosen to characterise as the provision of a service. That said, time is a consideration to take into account in assessing what is reasonable under the order for costs. Be that as it may, at that point the objection is no more than as to quantum.
Paragraph 6 relates to the claim for "getting up case for trial". The defendant does not take issue with the fact that the extent to which recovery was made was for that part of the service provided in the form of a consideration of the defence. Once that point is recognised the only issue raised is in relation to quantum.
Paragraph 7 relates to the claim for the plaintiff's summary judgment application, in particular the determination of quantum. The terms upon which the objection is expressed do not go beyond raising issues as to quantum.
Paragraphs 8 and 9 relate to the determination of a claim for a disbursement. The first issue raised is that there was no order for recovery of disbursements, the second that it should not have been recovered in the absence of a special order.
According to the definition of costs in the rules, "costs" include disbursements. The plaintiff was entitled to recover the disbursement under the order for costs.
Finally, the defendant proposes that the recovery affected was along the lines of what would be expected under an order for indemnity costs. The defendant does not actually allege that the taxing officer determined the amount recoverable on the basis that the plaintiff was entitled to indemnity costs. There is no ground for objection.
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