Warner v Bessant [No 4]

[2011] WADC 87

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   WARNER -v- BESSANT [No 4] [2011] WADC 87

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   ON THE PAPERS

DELIVERED          :   2 JUNE 2011

FILE NO/S:   CIV 2376 of 2007

BETWEEN:   NEILL CHRISTOPHER WARNER

Plaintiff

AND

REBEKAH CHANTELLE BESSANT
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia 1971 - Review of taxation - Turns on its own facts

Legislation:

Nil

Result:

Objections not sustained

Representation:

Counsel:

Plaintiff:     Not applicable

Defendant:     Not applicable

Solicitors:

Plaintiff:     Chapmans

Defendant:     Talbot Olivier

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

Nil

1. DEPUTY REGISTRAR HARMAN:  The plaintiff's claim was settled by agreement by way of consent to judgment in his favour.  Part of the judgment reads as follows:

   and costs fixed at $ to be agreed or taxed. 

2. I take it to be the case that when the registry generated form was completed by the parties, insufficient attention was given to recording the agreement that the plaintiff's costs would be agreed or taxed.  The plaintiff's bill was taxed and I am close to concluding the task of review.  Since the plaintiff's bill was taxed, each of the parties filed bills, the plaintiff for the costs of the appeal that instituted the current review and the defendant, for the costs of interlocutory applications made during the course of the action. 

3. By the defendant's bill she sought to recover the costs awarded to her on 23 July 2009, 10 September 2009 and 19 November 2009.  At taxation of the bill, after he had either consented to or not contested the fees relating to the applications the subject of those orders the plaintiff raised the question of the defendant's entitlement to recover costs.  His submission was no more than that as by the terms of the judgment he was entitled to the costs of the action the defendant was precluded from recovering costs. 

4. I considered that the submission was without merit.  Had the plaintiff succeeded at trial and the same order been made for the costs of the action, absent an order the defendant would not have been precluded from recovering the costs that she had been awarded.  The bill was taxed and the plaintiff was given the opportunity to file an objection.  The objection was received at about the time that there was correspondence between the plaintiff and the taxing officer on a question that arose on the taxation of his costs of the appeal.  It was not until I received a letter dated 12 May 2011 from the defendant's solicitor that I was alerted to the fact that I had not dealt with the objection. 

5. The terms of the notice is in the attached schedule.

6. It is implicit in the notice that the error of principle to be attributed to the taxing officer was the failure to recognise that the defendant's entitlement to costs had been extinguished.  As each ground of objection puts a different proposition than that put at taxation I am at a loss to understand how the attribution could operate.  Whilst the defendant carried the onus in the taxation it was for the plaintiff to establish a proposition to which the defendant could respond.  Only then would the taxing officer be in the position to err.

7. It follows that I do not accept what must be implicit in the notice.

8. Even if that reason is considered insufficient in relation to the first ground it must be sufficient in relation to the second in which he asserts an agreement by the defendant.  It is not clear whether he thereby proposes that the parties agreed or whether the defendant had given what may be characterised as a representation or undertaking.  It was incumbent upon the plaintiff to put the proposition at taxation.  The scope for review is properly limited to exclude errors made by parties.

9. As for the first ground, the terms of the judgment speak for a drop in professional, registry and court standards.  That said its provision for costs does not purport to pronounce anything in relation to the defendant's entitlement to recover costs.  The purpose of standards is to eliminate ambiguity and avoid the necessity for implication.  Although it should not be necessary to do so I accept that there may be scope to agitate for an implication to be drawn.  Whether it would be necessary to do so depends upon the case put.  In my opinion the case revealed by the objection can not succeed.  If somehow all of what I have canvassed is somehow attributable to the oversight of the taxing officer and thereby an error in principle, the central proposition fails as the words of the relevant part of the judgment could not sustain the implication.

10. In my opinion there is no merit in either ground of objection.

Schedule

Item objected to	Grounds	Reasons
Items 1 – 6  The whole of the Bill of Costs	Error in principle 1.    It is express and/or implied in the consent orders filed between the parties on 11 March 2010 that given it was agreed that the Defendant pay the Plaintiff's costs of the action, to be taxed if not agreed, the Defendant will not be entitled to seek the costs awarded to them [sic] during the course of the action.	The Defendant was not entitled at law or in equity to lodge a bill of costs in relation to any costs orders made in its favour, during the proceedings.
2.    Given the action was settled by consent on 11 March 2010, and the Defendant had not filed a bill of costs until 8 February 2011, the defendant is estopped from seeking those costs on the basis that it was agreed by them that they would not pursue any costs orders in their favour, and the Plaintiff relied on this promise in reaching the agreement on 11 March 2010.	The Defendant was not entitled at law or in equity to lodge a bill of costs in relation to any costs orders made in its favour, during the proceedings.