Stevenson v Zafra Pty Ltd - [2022] WASC 445

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   STEVENSON -v- ZAFRA PTY LTD [2022] WASC 445
CORAM:   MASTER SANDERSON
HEARD:   8 DECEMBER 2022
DELIVERED          :   22 DECEMBER 2022
FILE NO/S:   LPA 39 of 2019
BETWEEN:   CANDICE MARGARET STEVENSON
Applicant
AND
ZAFRA PTY LTD
First Respondent
WILSON & ATKINSON PTY LTD
Second Respondent

Catchwords:

Practice and procedure - Application for extension of time to tax costs - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	P G McGowan
Second Respondent	:	P G McGowan

Solicitors:

Applicant	:	In Person
First Respondent	:	Zafra Legal
Second Respondent	:	Zafra Legal

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

Frigger v Murfett Legal Pty Ltd [2012] WASC 447

MASTER SANDERSON:

On 17 September 2019, the applicant's then solicitors filed an originating process seeking to have assessed certain bills of costs rendered to her by the first respondent between 10 November 2015 and 3 October 2016. The second respondent was joined to the proceedings by amended originating process filed on 4 October 2019. An extension of time to apply for the assessment of costs was required and sought by the applicant's then solicitors. This was opposed by the respondents. In opposition to the application, the respondents relied on an affidavit of Shayne Graham Leslie sworn 28 October 2019. The applicant relied upon her two affidavits sworn 17 September 2019 (first affidavit) and 13 November 2019 (second affidavit). On 21 November 2019, the respondents filed a notice of objection to certain paragraphs of the applicant's first affidavit. I will deal with those objections below. For the present I should note that submissions in support of the application were filed by the applicant's then solicitors on 12 November 2019 and the respondents' submissions were filed 21 November 2019.
It is apparent there has been a significant delay in dealing with this application. That delay has been occasioned in large measure by the applicant's attempts to set aside the underlying costs agreement. I dismissed that application and the applicant's appeal against that decision was dismissed. An application for special leave to appeal to the High Court was also dismissed. Of course, it made no sense to deal with this application when the question of whether or not the costs agreement pursuant to which the bills were rendered would be set aside was still extant. Given the time that has passed, it is now appropriate to deal with the outstanding issues.
Dealing then with the objections taken by the respondents to the applicant's first affidavit, the paragraphs complained of are pars 14, 40, 44, 55, 56, 58.1 and 58.2. Objection is taken to all of those paragraphs. The nature of the objection varies slightly from one paragraph to the next. By way of example, paragraph 14 of the applicant's first affidavit reads as follows:
Had I transferred the shares to Atrum my loss would have been $1,500.
The objection taken to that…

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.

Keep reading for free

Create a free CaseChat account to read Stevenson v Zafra Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] WASC 445
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Candice Margaret Stevenson sought an extension of time to tax costs against Zafra Pty Ltd and Wilson & Atkinson Pty Ltd. The application arose from a dispute concerning bills of costs rendered by the first respondent between November 2015 and October 2016. The second respondent was later joined to the proceedings. The central legal issue revolved around whether the court should grant an extension of time for the applicant to assess the costs, considering the substantial delay in doing so. The respondents opposed the application, arguing that the delay was unjustified and that the reasons provided by the applicant were insufficient.

The court, Master Sanderson, examined the objections raised by the respondents to specific paragraphs in the applicant's affidavit. While the objections had some merit, the court found that the paragraphs were not so problematic as to warrant being struck out, particularly given the application was for an extension of time rather than for the assessment of costs itself. The court then proceeded to consider the relevant statutory provisions and case law. Section 295(7) of the Legal Profession Act 2008 (WA) sets out the criteria for extending the time for assessing costs, focusing on the length of the delay and the reasons for it. The court concluded that the delay in this case was substantial, spanning several years for different bills, and that the reasons provided by the applicant for the delay were inadequate. The applicant's assumption that a third party would cover the costs and the alleged inaction of the respondents did not sufficiently justify the delay. Additionally, the court found that the applicant's claim regarding the excessiveness of the costs was not supported by the evidence.

In light of these findings, the court dismissed the application for the extension of time. The applicant was ordered to pay the respondents' costs of the application, including reserved costs. The decision was based on the significant delay, the inadequate reasons provided by the applicant, and the lack of evidence supporting the claim of excessive costs.

Orders