Soia v Bennett [No 2]
[2013] WASCA 85 (S)
•13 MAY 2013
SOIA -v- BENNETT [No 2] [2013] WASCA 85 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 85 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:108/2012 | ON THE PAPERS | |
| Coram: | NEWNES JA | 13/05/13 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Respondent to pay appellants' costs on party and party basis | ||
| B | |||
| PDF Version |
| Parties: | KIM PETER SOIA PERSONALIZED TUITION SERVICES PTY LTD MARTIN LAWRENCE BENNETT |
Catchwords: | Practice and procedure Costs Second application for security for costs unsuccessful Whether appellant entitled to costs on indemnity basis Turns on own facts |
Legislation: | Legal Profession Act 2008 (WA), s 280 |
Case References: | Soia v Bennett [2012] WASCA 231 Soia v Bennett [No 2] [2013] WASCA 85 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SOIA -v- BENNETT [No 2] [2013] WASCA 85 (S) CORAM : NEWNES JA HEARD : ON THE PAPERS DELIVERED : 13 MAY 2013 FILE NO/S : CACV 108 of 2012 BETWEEN : KIM PETER SOIA
- First Appellant
PERSONALIZED TUITION SERVICES PTY LTD
Second Appellant
AND
MARTIN LAWRENCE BENNETT
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER SLEIGHT
Citation : SOIA -v- BENNETT [No 5] [2012] WASC 289
File No : CIV 1130 of 2003
(Page 2)
Catchwords:
Practice and procedure - Costs - Second application for security for costs unsuccessful - Whether appellant entitled to costs on indemnity basis - Turns on own facts
Legislation:
Legal Profession Act 2008 (WA), s 280
Result:
Respondent to pay appellants' costs on party and party basis
Category: B
Representation:
Counsel:
First Appellant : No appearance (on the papers)
Second Appellant : No appearance (on the papers)
Respondent : No appearance (on the papers)
Solicitors:
First Appellant : Galic & Co
Second Appellant : Galic & Co
Respondent : Bennett & Co
Case(s) referred to in judgment(s):
Soia v Bennett [2012] WASCA 231
Soia v Bennett [No 2] [2013] WASCA 85
(Page 3)
1 NEWNES JA: On 3 April 2013, I dismissed an application by the respondent for an order for security for costs: Soia v Bennett [No 2] [2013] WASCA 85. It followed an earlier application which was also dismissed: Soia v Bennett [2012] WASCA 231.
2 As there was no appearance on behalf of the respondent when judgment was delivered, I gave him an opportunity to make written submissions as to costs in response to the oral submissions of counsel for the appellants. I ordered that the question of costs be determined on the papers.
3 The respondent has now filed written submissions. The appellants do not seek to reply to them.
4 It was submitted on behalf of the appellants that the costs of the application should follow the event and should be awarded on an indemnity basis, as it was unreasonable for the respondent to have brought a second application. There had been no material change in circumstances which might lead to a different result.
5 The respondent did not resist an order that he pay the costs on a party and party basis but opposed an order for indemnity costs. It was submitted that it had not been unreasonable for the respondent to bring the second application. Counsel referred to the statement in my reasons for decision on the first application that at that stage there remained two contingencies which could substantially alter the appellants' financial position, being the costs of the trial and the outcome of the dispute in the County Court of Victoria as to the appellants' liability for an amount of some $150,000 claimed by their former counsel by way of fees.
6 Whilst the latter continued to remain unresolved, the costs of the trial below were subsequently the subject of orders of the primary judge that, in substance, the appellants pay 50% of the respondent's costs of the trial. As the respondent's bill of costs for taxation was still in the course of preparation, the second application was based on estimates made by the respondent's solicitor as to the amounts she considered the respondent would be allowed on taxation. The overall estimate indicated that the appellants' total assets would be insufficient even to meet the costs of trial.
7 I dismissed the application because I considered that the rather broad-brush estimates made by the solicitor did not provide a reliable basis for arriving at a conclusion as to the amount of the taxed costs, and that the overall estimate may be somewhat too high. Having regard to the
(Page 4)
- value of the appellants' assets as deposed to by the first appellant, I was not satisfied that the appellants are unlikely to be able to meet the respondent's costs of the appeal if the appellants are unsuccessful.
8 The grounds upon which an order for indemnity costs may be made have been explained by this court on a number of occasions. It is unnecessary to canvass them in detail. Suffice it to say that whilst the circumstances in which an indemnity costs order will be made cannot be exhaustively stated, ordinarily such an order will only be made where there has been some improper or unreasonable conduct on the part of the unsuccessful party or that party's legal advisers, such as the institution or continuation of proceedings which had no prospect of success or for some ulterior or collateral purpose. Where improper or unreasonable conduct occurs, the court may order the unsuccessful party to fully indemnify the successful party for the costs to which it has been put. But such an order is compensatory, not punitive, in nature and will not be made if the usual order for party and party costs, or a special costs order under s 280 of the Legal Profession Act 2008 (WA), would fully compensate the successful party for the costs it has properly incurred.
9 While the latest application for security for costs failed, I do not consider it to have been so lacking in merit that the respondent's conduct in bringing it warrants an indemnity costs order. The change in circumstances since the first application, being the making of costs orders in the action, was ultimately insufficient to make out a case for security for costs, but the matter was not so clear that it can be said the application was doomed to failure. Moreover, there was nothing before me to indicate that an order for party and party costs would not be sufficient to fully compensate the appellants for their costs of the application, an application which was unexceptional in its nature and scope.
10 There will be an order that the respondent pay the appellants' costs of the application to be taxed. The appellants' costs are to be taxed as one set of costs.
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