SOIA -v- BENNETT [No 5] [2012] WASC 289 (S)
| Link to Appeal : |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 289 (S) | |
| Case No: | CIV:1130/2003 | 15 OCTOBER 2012 | |
| Coram: | COMMISSIONER SLEIGHT | 21/12/12 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Costs awarded to defendant as detailed in decision | ||
| A | |||
| PDF Version |
| Parties: | KIM PETER SOIA PERSONALIZED TUITION SERVICES PTY LTD (ACN 009 099 71) MARTIN LAWRENCE BENNETT |
Catchwords: | Practice and procedure Costs Exception to usual order that costs follow the event Alleged misconduct by successful defendant Failure to recommend client seek independent legal advice. Practice and procedure Costs Defendant represented by incorporated legal practice of which he is a director/shareholder Whether equivalent to representing himself Whether rule of practice that costs are not recoverable applicable Practice and procedure Costs Special costs orders Removal of limits under relevant costs scale Practice and procedure Costs award against plaintiffs' solicitor personally Unreasonable conduct by solicitor |
Legislation: | Legal Practitioners Act 1893 (WA) Legal Profession Act 2008 (WA), s 280 Supreme Court Act 1935 (WA) |
Case References: | Bosco v Solomon Brothers [2006] WASC 307 Bostock v Ramsay Urban District Council [1900] 2 QB 616 Brickenden v London Loan & Savings Co [1934] 3 DLR 465 Cachia v Hanes (1994) 179 CLR 403 Cates v Glass [1920] NZLR 37 Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333 Commonwealth v Smith (1991) 402 FCR 390 Dobree v Hoffman (1996) 18 WAR 36 Gemstone Corporation of Australia Ltd v Grasso (1994) 62 SASR 239 Guss v Veenhuizen (No 2) (1976) 136 CLR 47 Haira v Burbery Mortgage Finance & Savings Ltd (In Receivership) [1995] 3 NZLR 396 Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Corrs Chambers Westgarth [2011] WASC 44 Jones v Curling (1884) 13 QBD 262 London Scottish Benefit Society v Chorley, Crawford & Chester (1884) 13 QBD 872 Maguire & Tansey v Makaronis (1997) 188 CLR 449 Monier Ltd v Metalwork Tiling Co of Aust Ltd (No 2) (1987) 43 SASR 588 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Re Bendeich (1994) 53 FCR 422; (1994) 126 ALR 643 Re Bertini; Ex parte Bertini [No 2] [2010] WASC 86 Re Eastwood (decd) [1975] Ch 112 Red Hill Iron Pty Ltd v API Management Pty Ltd [2012] WASC 323 Ridehalgh v Horsefield [1994] Ch 205; [1994] 3 WLR 462 Ritter v Godfrey [1920] 2 KB 47 Sims v Craig Bell & Bond [1991] 3 NZLR 535 Soia v Bennett [No 3] [2011] WASC 361 Soia v Bennett [No 5] [2012] WASC 289 Wan v McDonald (1992) 105 ALR 473 Witten-Hannah v Davis [1995] 2 NZLR 141 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
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- AGLC
- Soia v Bennett [No 5] [2012] WASC 289 (S)
- Case
- [2012] WASC 289 (S)
- Decision Date
CaseChat Overview and Summary
The case of Soia v Bennett [No 5] involved a dispute between the plaintiff, Soia, and the defendant, Bennett. The nature of the dispute was primarily focused on the allocation of costs following a legal decision. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought an exception to the usual order that costs follow the event, arguing that the defendant had engaged in misconduct by failing to recommend that the plaintiff seek independent legal advice. Additionally, the case raised questions about the defendant's representation by an incorporated legal practice, in which he is a director and shareholder, and whether this was equivalent to self-representation. The plaintiff also contested a special costs order that removed the limits under the relevant costs scale and sought a personal costs award against the plaintiffs' solicitor for unreasonable conduct.
The court was required to decide several legal issues. Firstly, whether the defendant's failure to recommend the plaintiff seek independent legal advice constituted misconduct warranting an exception to the usual order of costs. Secondly, whether the defendant's representation by an incorporated legal practice, in which he held a significant position, should be considered equivalent to self-representation, thereby affecting the costs recoverable. Thirdly, whether a special costs order that exceeded the limits under the relevant costs scale was appropriate in the circumstances. Lastly, whether the plaintiffs' solicitor's conduct warranted a personal costs award against them.
The court found that the defendant's failure to recommend the plaintiff seek independent legal advice did not constitute misconduct warranting an exception to the usual order of costs. The court held that the defendant's representation by an incorporated legal practice was not equivalent to self-representation, thus allowing for the recovery of costs. The court also determined that the special costs order was justified, as it was necessary to address the unique circumstances of the case. Furthermore, the court found the plaintiffs' solicitor's conduct to be unreasonable, resulting in a personal costs award against them. In summary, the court awarded costs to the defendant, as detailed in the decision.
The court was required to decide several legal issues. Firstly, whether the defendant's failure to recommend the plaintiff seek independent legal advice constituted misconduct warranting an exception to the usual order of costs. Secondly, whether the defendant's representation by an incorporated legal practice, in which he held a significant position, should be considered equivalent to self-representation, thereby affecting the costs recoverable. Thirdly, whether a special costs order that exceeded the limits under the relevant costs scale was appropriate in the circumstances. Lastly, whether the plaintiffs' solicitor's conduct warranted a personal costs award against them.
The court found that the defendant's failure to recommend the plaintiff seek independent legal advice did not constitute misconduct warranting an exception to the usual order of costs. The court held that the defendant's representation by an incorporated legal practice was not equivalent to self-representation, thus allowing for the recovery of costs. The court also determined that the special costs order was justified, as it was necessary to address the unique circumstances of the case. Furthermore, the court found the plaintiffs' solicitor's conduct to be unreasonable, resulting in a personal costs award against them. In summary, the court awarded costs to the defendant, as detailed in the decision.
Orders
Orders of the court
Costs awarded to defendant as detailed in decision
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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