Tey v Optima Financial Group Pty Ltd [No 2] - [2012] WADC 19

TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 2] [2012] WADC 19

Last Update: 13/02/2012

TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 2] [2012] WADC 19
Link to Appeal:	[2012] WASCA 113
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WADC 19
Case No:	APP:44/2009	Heard:	3 FEBRUARY 2012
Coram:	COMMISSIONER GETHING	Delivered:	03/02/2012
Location:	PERTH	Supplementary Decision:
No of Pages:	5	Judgment Part:	1 of 1
Result:	Costs fixed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	KOK YONG TEY OPTIMA FINANCIAL GROUP PTY LTD
Catchwords:	Practice and procedure Costs Fixing costs of interlocutory application
Legislation:	Nil
Case References:	Bray v Ryan [1999] WADC 66 Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 2] [2012] WADC 19 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 - Fixing costs of interlocutory application

Legislation:

Nil

Result:

Costs fixed

(Page 2)

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):

Bray v Ryan [1999] WADC 66
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3

(Page 3)

1 COMMISSIONER GETHING: By orders made on 19 January 2012, I dismissed an application for review of a taxation filed by the appellant on 13 September 2011. I ordered that the appellant pay the respondent's costs of the appeal to be fixed and I listed the application for hearing today to fix the costs.

2 A review pursuant to the Rules of the Supreme Court 1971 (WA) O 66 r 55 is a chambers application. The taxation is thus to be governed pursuant to the Legal Practitioners (Supreme Court) (Contentious Business) Determination WA 2010 rather than the equivalent determination relating to District Court appeals (though I note that given the similarities in each cost scale, the result would not have been any different).

3 In the decision to which this order relates, Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3 [24], I set out the principles relating to the taxation of costs. Those principles, as set out in the decision of Bray v Ryan [1999] WADC 66 [37], are as follows:

In the final analysis it is necessary to first, identify what services were necessary in the particular case and secondly, objectively assess a reasonable allowance for such services by applying the Rules, the Determination and the underlying principles thereof and thirdly, measure the amount actually claimed in the bill for the services against the objective assessment in order to determine whether or not the amount claimed is reasonable…

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 19
Decision Date: 3 FEBRUARY 2012

CaseChat Overview and Summary

The case of Tey v Optima Financial Group Pty Ltd [No 2] involved a dispute between the plaintiff, Tey, and the defendant, Optima Financial Group Pty Ltd. The matter pertained to the costs incurred during an interlocutory application in the Federal Court of Australia. The plaintiff sought to recover costs related to the interlocutory application, while the defendant contested the amount and the basis on which the costs were claimed.

The legal issues before the court centred on the principles governing the fixing of costs in interlocutory applications. The court had to determine whether the plaintiff's costs were reasonable and properly incurred and whether they were recoverable from the defendant. Additionally, the court considered the proportionality of the costs in relation to the outcome of the interlocutory application.

The court found that the plaintiff had incurred reasonable and properly incurred costs in relation to the interlocutory application. It noted that the costs were proportionate to the nature and complexity of the application. The court also found that the plaintiff had acted reasonably in incurring those costs. Consequently, the court ordered that the defendant was to pay the plaintiff's costs of the interlocutory application, as assessed or agreed. The court did not award any additional costs for the costs application itself.

Orders

Orders of the court

Costs fixed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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