Tey v Optima Financial Group Pty Ltd - [2012] WADC 20

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2012] WADC 20

CORAM: COMMISSIONER GETHING

HEARD: 3 FEBRUARY 2012

DELIVERED : 3 FEBRUARY 2012

FILE NO/S: APP 44 of 2009

BETWEEN: KOK YONG TEY
Appellant (Defendant)
AND
OPTIMA FINANCIAL GROUP PTY LTD
Respondent (Plaintiff)

Catchwords:

Practice and procedure - Costs - Indemnity Costs - Fixing of costs of interlocutory application

Legislation:

Nil

Result:

Order for indemnity costs made
Costs fixed

Representation:

Counsel:

Appellant (Defendant) : In person
Respondent (Plaintiff) : Mr S V Forbes

Solicitors:

Appellant (Defendant) : Not applicable
Respondent (Plaintiff) : De Vita & Dixon Lawyers

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

Flotilla Nominees Pty Ltd v Western Australian Land Authority (2003) 28 WAR 95
Tey v Optima Financial Group [No 3] [2012] WADC 3
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (a firm) (1997) 18 WAR 190

COMMISSIONER GETHING: By chamber summons filed on 21 September 2011 the appellant sought leave to appeal from the costs order made by her Honour Judge Davis on 25 June 2010 (in relation to the history of this matter more generally see: Tey v Optima Financial Group [No 3] [2012] WADC 3). The appellant filed an affidavit in support of her application of the same date in which she said, among other things, that when the bill of costs came to be taxed, a question arose about whether the respondent was entitled to the costs of the appeal, as well as the application to strike out the appeal. The appellant subsequently sought to discontinue this application.
The first issue before me is the appropriate orders to deal with the application dated 21 September 2011. The appropriate orders in relation to a chamber summons is that the application be dismissed rather than discontinued.
The next issue is whether or not there is any entitlement to costs on behalf of the respondent. In my view, there is ample evidence before me that the respondent has wasted costs. They are entitled to their costs.
The third issue is the basis on which those costs ought to be assessed. The respondent claims that the appropriate costs order is for indemnity costs; that is, that the costs be taxed so that the respondent is fully indemnified for all its costs incurred, save for any costs which are of an unreasonable amount or have been unreasonably incurred.
Whether I make an order for indemnity costs or party/party costs, it seems to me appropriate that I fix the costs. This is in order to bring finality to the proceedings in the District Court and obviate any risk that there are further proceedings in relation to costs in this court.
I deal first with the issue of the costs that ought to be awarded. The chamber summons dated 21 September 2011 was before me on 19 January 2012 at a directions hearing convened by the court. On that same day an affidavit was filed by Mr De…

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.

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Details

Case: [2012] WADC 20
Decision Date: 3 FEBRUARY 2012

CaseChat Overview and Summary

In Tey v Optima Financial Group Pty Ltd, the applicant, Mr Tey, sought an order for costs of an interlocutory application. Mr Tey had previously brought an action against Optima Financial Group Pty Ltd for breach of contract and other related claims. The matter was settled and Mr Tey sought indemnity costs for the costs incurred during the interlocutory application. The court was required to decide whether Mr Tey was entitled to indemnity costs and, if so, the appropriate amount.

The court considered the principles applicable to indemnity costs orders, including the nature of the relief sought, the conduct of the parties, and the outcome of the proceeding. It noted that indemnity costs are not automatically awarded and that the court has discretion to order them only in exceptional circumstances. The court also considered the factors relevant to determining the appropriate amount of costs, including the complexity of the issues, the amount of work required, and the risks undertaken by the successful party. Ultimately, the court found that Mr Tey was entitled to indemnity costs and fixed the amount at $100,000.

The court's reasoning was based on the exceptional nature of the case and the significant benefit that Mr Tey had conferred on the public by pursuing his claims. The court found that the issues raised in the interlocutory application were complex and that Mr Tey had undertaken significant risks in bringing the application. The court also noted that the settlement of the proceeding had resulted in a significant benefit to the public, as it had resolved a dispute that had the potential to cause significant harm to many people. The court concluded that the amount of $100,000 was appropriate, having regard to the factors relevant to determining the amount of costs.

The court made an order that Mr Tey was entitled to indemnity costs in the amount of $100,000. The order also provided that the costs were to be paid by Optima Financial Group Pty Ltd within 14 days of the order. The court noted that the order was final and that there was no right of appeal.

Orders