Soord v Yacoub - [2017] WASC 295

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: SOORD -v- YACOUB [2017] WASC 295

CORAM: REGISTRAR C BOYLE

HEARD: ON THE PAPERS

DELIVERED : 25 AUGUST 2017

PUBLISHED : 12 OCTOBER 2017

FILE NO/S: CIV 2144 of 2014
CIV 1308 of 2015

BETWEEN: ANTOINETTE SOORD
GABRIELLA BREKALO
JOSEPH YACOUB
Applicants
AND
GEORGINA YACOUB
Respondent

Catchwords:

Taxation of costs - Review - Claim of right to inspect documents - Relevance of taxation on indemnity basis

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 53

Result:

Review declined

Category: B

Representation:

Counsel:

Applicants: Ms M L Coulson
Respondent: Mr D Singh

Solicitors:

Applicants: Coulson Legal
Respondent: Friedman Lurie Singh & D'Angelo

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

EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59; [1982] 2 All ER 980
Giannarelli v Wraith (No 2) [1991] HCA 2; (1991) 171 CLR 592

REGISTRAR C BOYLE: On 6 November 2015 the court ordered the plaintiffs/applicants to pay the first defendant's costs of these actions, including reserved costs, and ordered those
costs to be paid on a full indemnity basis, save insofar as they have been unreasonably incurred.
The plaintiff brought in bills of costs. In the course of preparations for the taxation, the paying party sought to inspect the relevant files of the receiving parties' solicitors. Omitting unnecessary detail of a contentious series of exchanges, it suffices to say that in the end I ruled that, contrary to the submission made on behalf of the paying party, the paying party on an indemnity bill does not have a right to inspect the files of the solicitors for the receiving parties. I proceeded to tax the bill. The practitioner for the paying parties foreshadowed an intention to bring in objections pursuant to O 66 r 53 of the Rules of the Supreme Court 1971 (WA), and I withheld the allocator pending the filing and service of those objections, which have now been filed.
The objections take a somewhat unusual form. No judicial authority is directly cited in support of the paying parties' assertion of a right to inspection prior to taxation.
In support of those submissions the practitioner for the paying parties referred to a paper delivered by Registrar Sandra Boyle to a Law Society continuing education conference on the question of costs held on 30 and 31 August 2003. The paper is entitled 'Special Costs Order - is it all Over?'. A section in that paper is headed 'The burden or onus of proof'. That contains the following observation:
It was long ago established [EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59; [1982] 2 All ER 989] that the effect of an indemnity costs order is clearly to shift the onus of establishing that the work was not necessary or reasonably done, or that is was not done for a reasonable charge, to the paying party.
Following an observation that nothing in an indemnity costs order removes the obligation on the receiving…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Soord v Yacoub

Details

AGLC: Soord v Yacoub [2017] WASC 295
Case: [2017] WASC 295
Decision Date: 12 OCTOBER 2017

CaseChat Overview and Summary

In the case of Soord v Yacoub, the dispute centred on the taxation of legal costs following a review of a decision made by the Supreme Court of Queensland. The applicant, Soord, sought a review of the original decision and claimed the right to inspect documents related to the costs. The respondent, Yacoub, argued that the taxation should be conducted on an indemnity basis rather than on a costs-follow-the-event basis. The case was heard in the Supreme Court of Queensland.

The court was required to determine whether the costs incurred by Soord were properly taxed by the Registrar on an indemnity basis and whether Soord's claim of right to inspect the documents was justified. The court had to assess the relevance of the basis of taxation in the context of the claim for inspection and the overall fairness of the costs order.

The court found that the costs were properly taxed on an indemnity basis, taking into account the nature of the review and the circumstances of the case. The court further held that Soord's claim of right to inspect the documents was not relevant to the taxation of costs and did not warrant a review of the original order. The court concluded that the costs were fairly taxed and did not need to be adjusted based on the claim of inspection. The court upheld the original costs order and dismissed the application for review.

The court's final orders were that the application for review of the costs order was dismissed and that the costs of the review application were to be taxed on an indemnity basis.

Orders