Verney v Verney

[2016] WASC 110

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   VERNEY -v- VERNEY [2016] WASC 110

CORAM:   MARTIN CJ

HEARD:   ON THE PAPERS

DELIVERED          :   6 APRIL 2016

FILE NO/S:   CIV 1192 of 2014

BETWEEN:   MURRAY PAUL VERNEY as intending administrator of the estate of BARBARA CONSTANCE VERNEY (Dec)

First Plaintiff

CRAIG MORRIS VERNEY as intending administrator of the estate of BARBARA CONSTANCE VERNEY (Dec)
Second Plaintiff

ANNETTE GAYE VERNEY as beneficiary of the estate of BARBARA CONSTANCE VERNEY (Dec)
Third Plaintiff

LOUISE BARBARA VERNEY as beneficiary of the estate of BARBARA CONSTANCE VERNEY (Dec)
Fourth Plaintiff

EVETTE MARCIA VERNEY as beneficiary of the estate of BARBARA CONSTANCE VERNEY (Dec)
Fifth Plaintiff

AND

TERRENCE JOHN VERNEY as beneficiary of the estate of BARBARA CONSTANCE VERNEY (Dec)
First Defendant

RODNEY NOEL VERNEY as beneficiary of the estate of BARBARA CONSTANCE VERNEY (Dec)
Second Defendant

GREGORY IAN VERNEY as beneficiary of the estate of BARBARA CONSTANCE VERNEY (Dec)
Third Defendant

SANDRA KATHLEEN SLATER as beneficiary of the estate of BARBARA CONSTANCE VERNEY (Dec)
Fourth Defendant

PETER ALBERT VERNEY as beneficiary of the estate of BARBARA CONSTANCE VERNEY (Dec)
Fifth Defendant

YVONNE LILA VERNEY as beneficiary of the estate of BARBARA CONSTANCE VERNEY (Dec)
Sixth Defendant

FIONA NOELEEN GALEA as beneficiary of the estate of BARBARA CONSTANCE VERNEY (Dec)
Seventh Defendant

PAUL DOUGLAS VERNEY as beneficiary of the estate of BARBARA CONSTANCE VERNEY (Dec)
Eighth Defendant

NAOMI JANINE McCOOKE as beneficiary of the estate of BARBARA CONSTANCE VERNEY (Dec)
Ninth Defendant

MATTHEW MARTIN VERNEY as beneficiary of the estate of BARBARA CONSTANCE VERNEY (Dec)
Tenth Defendant

Catchwords:

Costs - Assessment by judge rather than by taxation to preserve modest estate - Turns on own facts

Legislation:

Nil

Result:

First - fifth plaintiffs' costs assessed at $30,147.10

Category:    B

Representation:

Counsel:

First Plaintiff                :     Mr D J Kirchner

Second Plaintiff            :     Mr D J Kirchner

Third Plaintiff               :     Mr D J Kirchner

Fourth Plaintiff             :     Mr D J Kirchner

Fifth Plaintiff                :     Mr D J Kirchner

First Defendant             :     In person

Second Defendant         :     In person

Third Defendant           :     In person

Fourth Defendant          :     In person

Fifth Defendant            :     In person

Sixth Defendant            :     In person

Seventh Defendant        :     In person

Eighth Defendant          :     In person

Ninth Defendant           :     In person

Tenth Defendant           :     In person

Solicitors:

First Plaintiff                :     Templar Legal Pty Ltd

Second Plaintiff            :     Templar Legal Pty Ltd

Third Plaintiff               :     Templar Legal Pty Ltd

Fourth Plaintiff             :     Templar Legal Pty Ltd

Fifth Plaintiff                :     Templar Legal Pty Ltd

First Defendant             :     In person

Second Defendant         :     In person

Third Defendant           :     In person

Fourth Defendant          :     In person

Fifth Defendant            :     In person

Sixth Defendant            :     In person

Seventh Defendant        :     In person

Eighth Defendant          :     In person

Ninth Defendant           :     In person

Tenth Defendant           :     In person

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

Nil

1. MARTIN CJ:  These proceedings have a long and chequered history which it is unnecessary to recount for present purposes.  It is sufficient to observe that following repudiation by some of the parties of an agreement achieved as a result of court‑based mediation, another agreement resolving the issues between the parties was finally achieved.  As a consequence of that agreement, on 17 September 2015 I ordered that the proceedings be discontinued and be taken to have been discontinued with effect from that date.  I further ordered that parties who had been legally represented in the proceedings were to be entitled to recover from the deceased estate reasonable costs incurred by them in relation to the steps taken by their lawyers in the proceedings, such costs to be assessed and determined by me.  I further directed that parties wishing to claim costs pursuant to that order were to provide to my associate an itemised list of costs claimed by reference to any relevantly applicable scale of costs.  I took that somewhat unusual course, rather than order that the costs be taxed, because of my concern that the process of taxation would result in further costs being incurred pursuant to that process, which costs would be deducted from a relatively modest estate which is to be distributed amongst many beneficiaries.

2. Some of the parties who had previously been represented by lawyers in these proceedings had, by the time of my order, discontinued the engagement of their legal representatives.  Perhaps understandably, those parties had difficulty preparing and lodging a bill of costs referable to the relevantly applicable scale of costs.  In the result, attempts through my associate to overcome those difficulties were unsuccessful, with the result that bills of costs lodged on behalf of the first defendant, and on behalf of the seventh and ninth defendants, were withdrawn, and those parties do not claim any costs from the estate pursuant to the order which I made.

3. Ultimately, bills of costs in appropriate form were filed on behalf of the first - fifth plaintiffs, and a separate bill of costs was filed on behalf of the fourth plaintiff.  It is convenient to deal with the costs claimed in that bill first.

4. It is clear from the bill of costs, and the itemised account filed in support of the bill, that all legal services in respect of which costs are claimed relate to the provision of advice and representation to the fourth plaintiff in respect of an issue which arose following the mediation to which I have referred.  Put shortly, following the completion of the mediation, it became apparent that the fourth plaintiff had posted text and images on her Facebook page, including photographs taken in the room in which the mediation had taken place, some of which depicted the terms of settlement under discussion which had been written on a whiteboard in the mediation room.  When the court was advised of the fourth plaintiff's actions, the matter was referred to me by the registrar who had been dealing with the case up until that point.  Through my associate I advised the parties that a hearing would be held in order to consider any action which might be taken by the court in respect of the apparent breach of the confidentiality of the mediation and the arguable contempt of court which had been committed by those responsible for the publication of the text and images to which I have referred.  As I have noted, it is clear that the services for which the fourth plaintiff claims costs separately to the costs claimed by her in her capacity as one of the five plaintiffs, relate only to the provision of advice to her, and the representation of her at the hearing which was held to consider the issues arising from the posting of the relevant images and text on her Facebook page.

5. In my view it would be inappropriate for the fourth plaintiff's costs with respect to those matters to be paid out of the deceased estate.  They are not costs which come within the scope of the order which I made on 17 September, as they were not costs incurred by lawyers engaged by the fourth plaintiff in order to prosecute the proceedings - those costs are separately claimed.  Rather, the costs were incurred by the fourth plaintiff in the protection of her own interests as a result of the entirely inappropriate actions which she took following the mediation and which had the consequence that the agreement which had been achieved at the mediation was abandoned by a number of the parties.  For those reasons, no costs will be allowed to the fourth plaintiff in respect of the separate bill of costs which she has filed.

6. Turning now to the bill of costs filed on behalf of the first - fifth plaintiffs, I have reviewed all items claimed in that bill totalling $32,027.10, which has been prepared in accordance with the relevantly applicable scale of costs.  I am satisfied that all items claimed relate to work properly and reasonably done and are reasonable in amount, and should be allowed in full, save for two items which I will now specifically address.  First, item 2 in the bill claims an amount of $880 in respect of an informal conference held with various parties prior to the commencement of proceedings.  Although I have no doubt that it was entirely proper and reasonable to convene that conference, in my view the costs incurred with respect to it are not costs incurred in relation to the prosecution of the proceedings, as steps were not taken for the commencement of the proceedings until some time after that conference had failed to resolve the issues between the parties.

7. Second, item 25 claims an amount of $15,000 in respect of getting up the case generally, being a rounded amount drawn from an itemised schedule depicting many items of work, apparently drawn from a computerised time‑sheet, the cost of which items totals $18,720.  It is clear from my review of that itemised schedule that a number of the items within it relate to general attendance upon the clients and other items not properly attributable to preparing the plaintiffs' case for trial.  In order to avoid a laborious and counter‑productive process of taxation, I will deal with this item of the bill as a matter of impression rather than science.  Taking that approach, I have concluded that, of the total schedule amount of $18,720, $4,720 is not properly referable to preparation of the case for trial, with the result that $14,000 should be allowed in respect of the item claimed in the bill.

8. Accordingly, I have concluded that the amount claimed on behalf of the first - fifth plaintiffs should be reduced by $1,880, with the result that the total costs and disbursements allowed come to $30,147.10.

9. For these reasons I order that the first - fifth plaintiffs be entitled to the amount of $30,147.10, to be paid from the deceased estate, in respect of their costs of these proceedings.