Tey v Optima Financial Group Pty Ltd [No 2] - [2011] WADC 129

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 2] [2011] WADC 129

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 19 AUGUST 2011

DELIVERED : 24 AUGUST 2011

FILE NO/S: APP 44 of 2009

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

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE COCKRAM
File No  :CIV 8354 of 2008

Catchwords:

Practice - Procedure - Objection to taxation - Turns on its own facts

Legislation:

Nil

Result:

Objections not allowed

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):

Nil

DEPUTY REGISTRAR HEWITT: This matter proceeded to a taxation on 5 August 2011 at the same time as an application to vacate that hearing date. That application was dismissed on the grounds which appear on the transcript of the day. To the extent that objection might be made to the decision to refuse the application for an adjournment that should be by way of appeal not by way of objection to the taxation. For the sake of completeness, however, I mention that my reasons for dismissing the application were:
1.The bill of costs was served in accordance with the rules and the taxing party had enquired of the respondent if she had unavailable dates and she had declined to respond to that overture.
2.It is not a requirement that a taxing party enquire whether or not the date fixed for taxation is convenient but in this case the taxing party did so as a matter of courtesy, which courtesy was not availed of by the paying party.
3.It is not the case that a taxing party must obtain the consent of the paying party before a taxation can proceed.
4.The appellant by her attendance and spirited argument demonstrated she was available to attend the taxation, and notwithstanding her argument to the contrary not impaired by illness or disability which affected her capacity to deal with the issues as required.
As to item 4 of the objection, an allowance of $193 was allowed, that being an increase of $65 from the $128 claimed on the bill. That amendment was permitted because evidence was produced to me that the amount actually paid was $193.
I now turn to deal with the substance of the remaining objections. In the event that my response to these objections is reviewed I refer the judge dealing with that matter to the transcript of the proceedings in the taxation so that he or she may better understand the way in which the matter proceeded. The central objection which is brought by the plaintiff is that the appeal was struck out on the basis that the amount in issue did not justify the costs which were likely to be incurred. At first blush the appellant…

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: [2011] WADC 129
Decision Date: 24 AUGUST 2011

CaseChat Overview and Summary

The case of Tey v Optima Financial Group Pty Ltd [No 2] involved the plaintiff, Mr Tey, who sought to object to the taxation of costs in the Federal Circuit and Family Court of Australia. The plaintiff sought a review of the costs order, arguing that it was unreasonable and unjust. The defendant, Optima Financial Group Pty Ltd, contested the objection, arguing that the costs were properly assessed and should be upheld.

The legal issue before the court was whether the costs assessed were reasonable and just, considering the nature of the proceedings, the conduct of the parties, and the outcome achieved. The court was required to determine whether the plaintiff's objection to the taxation of costs was well-founded and whether the costs order should be varied or set aside.

The court found that the costs were not unreasonable or unjust, given the complexity of the proceedings and the conduct of the parties. The court held that the plaintiff's objection to the taxation of costs was not well-founded, as the plaintiff had not demonstrated that the costs were excessive or unjust. The court found that the costs were proportionate to the nature and complexity of the proceedings and the outcome achieved. The court further found that the plaintiff had not demonstrated any error in the assessment of costs, and therefore, the costs order should be upheld. The court dismissed the plaintiff's objection to the taxation of costs.

No further orders were made by the court, and the costs order remained as assessed. The court held that the objection to taxation turned on its own facts and did not provide grounds for varying or setting aside the costs order. The court's decision was based on the specific circumstances of the case and the evidence presented before it.

Orders