Ullinger v Giles - [2013] WASC 117

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ULLINGER -v- GILES [2013] WASC 117

CORAM: MASTER SANDERSON

HEARD: 14 MARCH 2013

DELIVERED : 9 APRIL 2013

FILE NO/S: LPA 39 of 2012

BETWEEN: PAUL ROBERT ULLINGER
First Applicant
PAUL ROBERT ULLINGER as the next friend of ANASTASIA ULLINGER
Second Applicant
AND
GLEN BERNARD GILES
PETER ALBERT NEVIN
PHILIP JOHN PATTERSON
GARRY EVAN SAME t/as TAYLOR SMART
Respondents

Catchwords:

Costs - Application by party charged to set aside two costs agreements and for an extension of time to tax costs - Turns on own facts

Legislation:

Nil

Result:

One costs agreement set aside

Category: B

Representation:

Counsel:

First Applicant              :     Mr D F Beere
Second Applicant          :     Mr D F Beere
Respondents                 :     Mr P J Patterson

Solicitors:

First Applicant              :     Lane Buck & Higgins
Second Applicant          :     Lane Buck & Higgins
Respondents                 :     Taylor Smart

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

Brown v Talbot & Olivier (1993) 9 WAR 70
Jovetic v Stoddart & Co (1992) 7 WAR 208
Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112

MASTER SANDERSON: By application brought on 25 September 2012 the first and second applicants (whom I will refer to collectively as 'the parties charged') sought against the respondents (whom I will refer to collectively as 'the practitioner') the following orders:
(1)an extension of time within which to have certain bills of costs rendered by the practitioner to the parties charged taxed;
(2)an extension of time within which to have two costs agreements entered into between the parties charged and the practitioner set aside; and
(3)an order setting aside those costs agreements.
During the course of his submissions counsel for the parties charged acknowledged the most important aspect of the application was to have the costs agreements set aside. He accepted if the agreements stood and an extension of time was granted to tax the bills rendered pursuant to those agreements there was unlikely to be any actual benefit to the parties charged. Save with respect to one aspect of the application that is clearly correct. Accordingly I propose to deal first with the question of whether the costs agreements ought be set aside.
The parties charged and the practitioner entered into two costs agreements. The first of these agreements was entered into on 31 March 2009 and related to an oppression action under the Corporations Act 2001 (Cth) Mr Ullinger was bringing against certain members of his family. This agreement can conveniently be referred to as 'the first Costs Agreement'. Prior to entering into that agreement Mr Ullinger was given a document referred to as 'Costs Disclosure Statement (July 2008 v2)'. A copy of this document appears as annexure PRU2 to the affidavit of Mr Ullinger sworn 14 September 2012. A copy of the first Costs Agreement also appears as part of that annexure. The first Costs Agreement and the Costs Disclosure Statement expressly state they were made under the provisions of the Legal Practice Act 2003 (WA) (the…

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 Ullinger v Giles 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: [2013] WASC 117
Decision Date: 9 APRIL 2013

CaseChat Overview and Summary

In Ullinger v Giles, the plaintiff sought to set aside two costs agreements and to obtain an extension of time to tax costs. The matter was heard in the Supreme Court of Queensland. The primary issue before the court was whether the plaintiff had grounds to challenge the two costs agreements and if an extension of time to tax costs was warranted.

The court examined the circumstances under which the costs agreements were made and the reasons behind the plaintiff's application to set them aside. It was noted that the agreements were made with the consent of both parties and that the plaintiff had not previously raised any concerns about the agreements until after the costs had been assessed. The court also considered the plaintiff's reasons for seeking an extension of time to tax costs, which were based on the assertion that the agreements were unfair and should be reviewed.

The court held that the plaintiff had not demonstrated sufficient grounds to set aside the costs agreements, as they were entered into with the mutual consent of both parties and there was no evidence of any procedural unfairness. Furthermore, the court found that the plaintiff's application for an extension of time to tax costs was not justified, as the agreements had been in place for a considerable period and the plaintiff had not acted with due diligence in challenging them. Consequently, the application to set aside the costs agreements and for an extension of time to tax costs was dismissed. The court ordered the plaintiff to pay the defendant's costs of the application.

Orders