Westgem Investments Pty Ltd v Commonwealth Bank of Australia Ltd [No 3]
[2020] WASC 228
•18 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WESTGEM INVESTMENTS PTY LTD -v- COMMONWEALTH BANK OF AUSTRALIA LTD [No 3] [2020] WASC 228
CORAM: REGISTRAR WHITBY
HEARD: 14 MAY 2020
DELIVERED : 18 JUNE 2020
PUBLISHED : 18 JUNE 2020
FILE NO/S: CIV 2340 of 2013
BETWEEN: WESTGEM INVESTMENTS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) IN ITS OWN RIGHT AND AS TRUSTEE FOR: (1) HOSSEAN POURSAND AND JENNY MARIA POURZAND AS TRUSTEES FOR THE HELEN TRUST; AND (2) PAKWEST PTY LTD (RECEIVERS AND MANAGERS APPOINTED) AS TRUSTEE FOR: (A) NEWPORT SECURITIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (CONTROLLERS APPOINTED) AS TRUSTEE FOR THE PAKWEST TRUST; AND (B) OAKCURE PTY LTD AS TRUSTEE FOR THE PARRY TRUST
First Plaintiff
HOSSEAN POURZAND AND JENNY MARIA POURZAND IN THEIR OWN RIGHT AND AS TRUSTEES FOR (1) THE HELEN TRUST; AND (2) THE SHERIN TRUST (3) THE POURZAND FAMILY TRUST
Second Plaintiffs
PAKWEST PTY LTD (RECEIVERS AND MANAGERS APPOINTED) IN ITS OWN RIGHT AND AS TRUSTEE FOR: (1) NEWPORT SECURITIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (CONTROLLERS APPOINTED) AS TRUSTEE FOR THE PAKWEST TRUST; (2) OAKCURE PTY LTD AS TRUSTEE FOR THE PARRY TRUST; (3) WESTVIEW ASSET PTY LTD AS TRUSTEE FOR THE WESTVIEW TRUST; (4) OAKCURE PTY LTD AS TRUSTEE FOR THE ZAHRA NO 2 TRUST; (5) CITYSCAPE INVESTMENTS PTY LTD AS TRUSTEE FOR THE FARAMAZ TRUST; AND (6) RANGEWAY INVESTMENTS PTY LTD AS TRUSTEE FOR THE RANGEWAY INVESTMENTS TRUST
Third Plaintiff
NEWPORT SECURITIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (CONTROLLERS APPOINTED) IN ITS OWN RIGHT AND AS TRUSTEE FOR: (1) THE PAKWEST TRUST; AND (2) THE NEWPORT FAMILY TRUST
Fourth Plaintiff
OAKCURE PTY LTD IN ITS OWN RIGHT AND AS TRUSTEE FOR THE PARRY TRUST
Fifth Plaintiff
SEAPORT PTY LTD (RECEIVERS AND MANAGERS APPOINTED) IN ITS OWN RIGHT AND AS TRUSTEE FOR THE SEAPORT TRUST
Sixth Plaintiff
LUKE SARACENI
Seventh Plaintiff
AND
COMMONWEALTH BANK OF AUSTRALIA LTD
First Defendant
BOS INTERNATIONAL (AUSTRALIA) LTD
Second Defendant
BOSI SECURITY SERVICES LTD
Third Defendant
MARK FRANCIS XAVIER MENTHA
Fourth Defendant
THE TRUST COMPANY (AUSTRALIA) LTD AS CUSTODIAN OF CHARTER HALL WHOLESALE MANAGEMENT LTD AS TRUSTEE OF THE RAINE SQUARE TRUST
Fifth Defendant
Catchwords:
Review of Taxation - Order 66 rules 53, 54 Rules of the Supreme Court 1971 (WA) - Error in principle
Legislation:
Corporations Act 2001(Cth)
Legal Profession (District and Supreme Courts) (Contentious Business) Scale 2018
Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Fourth defendant's objections dismissed
Category: B
Representation:
Counsel:
| First Plaintiff | : | Steven Penglis SC & Mr N Gentilli |
| Second Plaintiffs | : | Steven Penglis SC & Mr N Gentilli |
| Third Plaintiff | : | Steven Penglis SC & Mr N Gentilli |
| Fourth Plaintiff | : | Steven Penglis SC & Mr N Gentilli |
| Fifth Plaintiff | : | Steven Penglis SC & Mr N Gentilli |
| Sixth Plaintiff | : | Steven Penglis SC & Mr N Gentilli |
| Seventh Plaintiff | : | Steven Penglis SC & Mr N Gentilli |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | Mr P W Collinson QC & Ms M L Coulson |
| Fifth Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Jackson McDonald |
| Second Plaintiffs | : | Jackson McDonald |
| Third Plaintiff | : | Jackson McDonald |
| Fourth Plaintiff | : | Jackson McDonald |
| Fifth Plaintiff | : | Jackson McDonald |
| Sixth Plaintiff | : | Jackson McDonald |
| Seventh Plaintiff | : | Jackson McDonald |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | Coulson Legal |
| Fifth Defendant | : | No appearance |
Case(s) referred to in decision(s):
Altorfer & Stow (a firm) v Lindsay [2005] WASCA 73
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229
City of Belmont v Saldanha [No 2] [2018] WASC 278
Craig v Troy [2000] WASC 74
Larussa v Carr [2019] WASCA 34
Mentha as Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq) [2014] WASC 478 (S)
Parramatta City Council v Pestell (1972) 128 CLR 305
Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155
Sino Iron Pty Ltd -v- Minerology Pty Ltd [No 2] [2017] WASCA 76 (S)
Soia v Bennet [2014] WASCA 204
Westgem Investments Pty Ltd & Ors v Commonwealth Bank of Australia [2017] WASC 333
Westgem Investments Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2018] WASC 156
Westgem Investments Pty Ltd (Receivers and Managers) (Administrators Appointed) & Ors v Commonwealth Bank of Australia Ltd & Ors [No 2] [2019] WASC 377
REGISTRAR WHITBY:
On 24 October 2019, the fourth defendants filed an amended bill of costs pursuant to the orders of the Honourable Justice Tottle made on 16 May 2018 (Bill of Costs).
The taxation of the Bill of Costs occurred on 5, 6 and 7 February 2020 (taxation). The fourth defendants claimed a sum of $735,948.40 for Item 27 - preparation of case - pursuant to item 17 of the Legal Profession (District and Supreme Courts) (Contentious Business) Scale 2018 (the Scale). The claim for Item 27 of the Bill of Costs was supported by schedule 13 to the Bill of Costs (the schedule). The schedule is annexed at annexure 'A' to these reasons for decision.
At the conclusion of the taxation, I allowed an amount of $260,000 (allowance) for the fourth defendants' preparation for case ‑ item 27 of the Bill of Costs.
The fourth defendants seek a review of the taxation on the ground that I made errors in principle in the assessment of item 27 (review).
Overview of proceedings
Mr Luke Saraceni and Mr Hossean Pourzand, through the corporate vehicle Westgem Investments Pty Ltd (Westgem), were the developers of the Raine Square office and retail development project in Perth (Raine Square).
The financiers of Raine Square were the Bank of Western Australia Ltd (Bankwest) (now a division of Commonwealth Bank of Australia (CBA) and BOS International (Australia) Ltd (BOSI) via the security trustee BOSI Security Ltd (formerly BWA Custodians Limited (Security Trustee) (collectively the financiers).
Westgem also had a relationship with Bankwest/CBA in its capacity as a prospective tenant of Raine Square.
In January 2011, based upon the occurrence of defaults under the finance facility, the financiers appointed Mr Mark Mentha and Mr Clifford Rocke as the receivers (receivers), and Mr Brian Hughes as the voluntary administrator, to the assets of Westgem. At this time, the development of Raine Square was incomplete.
In October 2012, Westgem went into liquidation with Mr Hughes appointed as liquidator.
In October 2012, Westgem commenced proceedings in the Supreme Court of Western Australia in CIV 2722 of 2012 (main action) against the financiers claiming against the financiers in two capacities ‑ firstly as the financiers of Raine Square (referred to as the 'financing claims') and secondly against Bankwest/CBA as a prospective tenant of premises at Raine Square (premises) (referred to as the 'leasing claims')[1].
[1] Westgem Investments Pty Ltd & Ors v Commonwealth Bank of Australia [2017] WASC 333 [6].
The core allegations made by the plaintiffs in the main action against the financiers (as financiers) were that the defaults under the facility occurred because of breaches of contract, breaches of applicable statutory prohibitions on misleading and deceptive conduct and unconscionable conduct, and breaches of the applicable Code of Conduct. By way of counterclaim in the main action, the financiers claimed the debt owing under the facility.
One of the issues in dispute in the main action was referred to as the 'fit‑out claim'. The fit out claim arose in the following circumstances:
(a)the premises were to be fitted out by Westgem in accordance with Bankwest's fit out plans (the precise terms of which were contained in the Heads of Agreement entered into between various parties in October 2006 relating to Raine Square (HOA) and the Agreement for Lease between Westgem and Bankwest/CBA entered into in April 2009(AFL));
(b)Westgem claimed that Bankwest/CBA failed to disclose that there was a material likelihood or risk that it would not proceed with the fit out plan as represented;
(c)Westgem alleged that this misleading conduct or lack of good faith led Westgem to sign the AFL in a prejudicial form, which in turn enabled Bankwest to remove the balance of the fit out work from the scope of works Westgem had to construct;
(d)Westgem claimed this had certain consequences as to Westgem's ownership of the fit-out works and Westgem's relationship with Salta Construction Ltd (the intitial builder appointed to carry out the development of Raine Square).
Final completion of Raine Square occurred in June 2013. Raine Square was sold by the receivers on 18 June 2013 for $458 million (Sale).
In June 2013, the receivers executed the following agreements in relation to the sale:
(a)the Raine Square Settlement and Release Deed (SRD);
(b)the Deed of Covenant deeds of release (DOC); and
(c)the Retention and Acknowledgement Deed (RAD)
(collectively the 2013 documents).
In early August 2013, King & Wood Mallesons, the solicitors for the financiers, wrote to the solicitors for the plaintiffs in the main action advising that, as a result of execution of the 2013 documents, a number of claims pleaded in the main action could no longer be maintained by the plaintiffs.
As a result, on 30 August 2013, the plaintiffs in the main action commenced proceedings against the financiers and the receivers in CIV 2340 of 2013 (action). In the action, the plaintiffs alleged that:
(a)upon a proper construction of the terms of the SRD, certain claims in the main action were not released and could be maintained by the plaintiffs;
(b)the receivers (fourth defendants) lacked authority to execute the 2013 documents;
(c)in any event, the receivers breached their duties in executing the 2013 documents; and
(d)the financiers (first to third defendants) either assisted the receivers or were knowingly concerned in their breaches.
In the action, the plaintiffs sought, inter alia, the following relief:
(a)a declaration that certain claims were not released by the 2013 documents and that those claims were able to be maintained by the plaintiffs in the main action;
(b)a declaration that certain terms of the 2013 documents were void as against the first plaintiff;
(c)an injunction preventing the first defendant from relying upon the 2013 documents;
(d)alternatively, a declaration that the first to third defendants were estopped from relying upon the 2013 documents as a defence in the main action; and
(e)damages pursuant to s 1317H of the Corporations Act 2001(Cth) or s 236 of the Consumer Law.
On 8 December 2017, the action was listed for a four day trial commencing on 14 May 2018.
By leave granted by Tottle J on 23 March 2018, the action was discontinued by the plaintiffs. On 16 May 2018, Tottle J made the following orders:
1.The plaintiffs pay the first, second, third and fourth defendants' costs of the action, to be taxed if not agreed.
2.Pursuant to s 280(2) of the Legal Profession Act 2008 (WA), there be special costs orders in favour of the first, second, third and fourth defendants in respect of their costs of the action, namely the limits on costs (in respect of the fixed amounts) imposed by the relevant determinations relating to each item of work be removed.
Review of taxation - general principles
Order 66 r 53(1) Rules of the Supreme Court 1971 (RSC) provides:
53.Party dissatisfied with taxation may object and apply for review
(1)A party who contends that the Taxing Officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a Certificate of Taxation dealing with that item is signed, or at such earlier time as may, in any case, be fixed by the Taxing Officer -
1.1deliver to the other party interested in the allowance or disallowance and carry in before the Taxing Officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections; and
1.2thereupon apply to the Taxing Officer to review the taxation in respect of those items or parts.
Order 66 r 54 RSC provides:
54.Review of taxation by taxing officer
(1)Upon an application under rule 53 to review the taxation, the taxing officer shall reconsider and review his taxation in relation to the objections, and he may, if he thinks fit, receive further evidence in respect of the objections.
(2)If so required by a party, the taxing officer shall state in his certificate of taxation or by reference to the objection, the ground and reason of his decision on the objection, and any special facts or circumstances relating to his decision.
(3)The taxing officer may tax the costs of the objections and add them to or deduct them from, any sum payable by or to a party to the taxation.
In Soia v Bennett [2014] WASCA 204 [27] ‑ [28] (Soia), Mitchell J observed that:
27The requirements of r 53(1) I have described above are more than merely formal requirements. An objection under r 53(1) defines the scope of the taxing officer's review under r 54 and the judge's powers under r 55. The specification of the items objected to and the ground of objection, in a way that identifies the alleged error of principle, also facilitates the subsequent steps in the objection process. If the written objection clearly identifies the error of principle, then the taxing officer's reasons under r 54(2) can indicate whether the taxing officer has applied that principle. If the taxing officer accepts that the principle has been applied as alleged, the task of the judge reviewing under r 55 may simply be to determine whether the application of that principle was actually erroneous.
28 ... Because upon a review of a taxation a judge may rectify only errors of principle, it is particularly important that the party seeking review should require the taxing officer to state the ground and reasons of his decision on each objection and equally important that the taxing officer should give clear but concise reasons. This will only be achievable if the objection under r 53 specifies the items or parts of items objected to and the grounds and reasons for the objections, cast in terms of an alleged error of principle (footnotes omitted).
A number of authorities have considered what constitutes an error in principle. In Altorfer & Stow (a firm) v Lindsay [2005] WASCA 73 [56] (Altorfer) McLure JA said:
The approach taken by the Registrar and upheld by the Master was that the taxing officer cannot make an error in principle for the purposes of r 53 unless the issue the subject of the objection had been raised and considered by the taxing officer at the taxation. There is no justification in the language of r 53 or in principle for such a limitation. The taxing officer's powers and duties on a taxation continue until he becomes functus officio on the issue of a certificate: Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 624. An error of principle can be made in allowing or disallowing an item notwithstanding that a material issue of fact or law has not been brought to the taxing officer's attention by the parties. The applicants' objection, filed in accordance with r 53, raised a potential error of principle, in which event the taxing officer was obliged under r 54(1) to reconsider and review his taxation in relation to that objection.
In Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155 [75] ‑ [78] Murphy JA, with whom McLure P and Newnes JA agreed, summarised the authorities dealing with errors in principle as follows:
75Order 66 r 53 and O 66 r 55 refer to an 'error in principle'. In this context, errors in principle have been contrasted with questions of mere quantum. In Re Catlin [1854] 18 Beav 508 [52 ER 200], Sir John Romilly said:
'The petition is to review the taxation made by the Taxing Master of a bill of costs delivered by Mr Catlin, and complaining of the disallowance of various items. It is admitted, on both sides, that this Court can only be called upon to determine on the propriety of allowing or disallowing items which involve some principle, and not where a question only of quantum arises. (Alsop v Lord Oxford 1 Myl & K 564.)'
76Nevertheless, errors in principle may be made both in determining whether an item should be allowed and in determining how much should be allowed: Schweppes Ltd v Archer (1934) 34 SR (NSW) 178, 183; Australian Coal & Shale Employees' Federation v Commonwealth (628).
77An error in principle may be inferred from a decision of the taxing officer if the result is such that the discretion appears not to have been exercised at all, or where it has been exercised in a manner that is manifestly wrong: Australian Coal & Shale Employees' Federation v Commonwealth (628 - 629).
78In Mossensons (a firm) v Coastline Associates, Ipp J (Pidgeon J agreeing) observed (9 - 10):
'The point is that there must be an error in principle before a judge will carry out a review under O 66 r 55. Although it is possible for an error in principle to be made in regard to the quantum allowed in respect of a particular item, that is generally regarded as unusual. In my opinion, an error in principle on this basis could only be established if it is shown that no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question.'
A taxing officer, when exercising discretion, is to have regard to experience gained in other taxations. In Craig v Troy [2000] WASC 74 [28] (Craig), McKechnie J stated:
Undoubtedly the old style of taxation line by line, item by item has long gone: Cruikshank v Producers' Market Co-operative ltd [1960] WAR 184. However, that is not to say that a taxing officer is permitted or required to guess at an appropriate figure. The arrival at a proper allowance for the costs of getting up a case for trial is an exercise in judicial discretion. It is an 'art' only to the extent that a taxing officer brings to the exercise of his or her discretion, experience gained in other taxations relating to matters of differing complexity, importance and difficulty.
In Larussa v Carr [2019] WASCA 34[32] ‑ [35] (Larussa), the Court of Appeal (Buss P, Murphy JA and Beech JA) said at [32] and [35]:
32The process of objection does not have the character, ascribed to it by counsel for the appellant, of a 'cooling-off period'. Objections lodged under O 66 r 53 must be consistent with the manner in which the objecting party has conducted the taxation process.
…
35Weighting errors do not reveal an error in principle in the exercise of a discretion.
Grounds of objection
The fourth defendants submit that, in delivering the reasons for disallowing the sum of $475,948.40 for item 27 (disallowance), I erred in making the following findings in support of the disallowance;
(a)the issues in the actions were not complex; and
(b) whilst it was accepted that there would have been some review of the matters and issues in the principal proceeding, CIV 2722 of 2013 (the main action), the party and party component of that review was limited to the 'fit-out claim',
(collectively referred to as the findings).
The fourth defendants object to the disallowance on the grounds that I erred in:
(a)making the findings and in relying on the findings to support the disallowance (ground 1);
(b)failing to have sufficient regard to the time claimed by counsel in respect of preparation (ground 2); and
(c)allowing objections to be made that were not within the ambit of the notice of objections (ground 3).
The fourth defendant submits that, by reason of my reliance on the findings, the allowance was so inadequate that no taxing officer, acting reasonably, could ever have taxed item 27 in the amount of the allowance.
Alternatively, the fourth defendant submits that it can be inferred from the disallowance that I have exercised my discretion in a manner that is manifestly wrong.
Documents produced at review
The parties filed the following documents on the review of taxation:
(a)fourth defendants' Request for Review of Taxation dated 21 February 2020 (Receivers' Review Request);
(b)plaintiffs' response to the fourth defendants' Request for Review of Taxation dated 23 March 2020 (First Westgem Response);
(c)fourth defendants' reply to the Westgem Response dated 16 April 2020 (Receivers' Reply); and
(d)plaintiffs' response to the fourth defendants' reply dated 13 May 2020 (Second Westgem Response).
The fourth defendants also provided the court with an index and bundle of documents to which they intended to refer at the review hearing. All but one of those documents formed part of the documents available to me at the taxation (the exception being a letter from Jackson McDonald to Norton Rose Fulbright dated 6 May 2015 - which counsel for the fourth defendants advised was quoted in an affidavit available to me at the taxation). The plaintiffs did not object to any of those documents being before me at the review hearing. The index of documents is attached at Annexure 'B' to these reasons. In accordance with the decision in Altorfer, I am permitted to take, and have taken, into account those documents comprising the bundle upon the review.
I will deal with each of the grounds of review in turn.
Ground 1 - making and relying upon the findings
The submissions of the fourth defendant in support of ground 1 focus on the interplay between the action and the main action and the level of complexity that was attendant upon the action as a result of that interplay. That is linked to the second of the findings contended for by the fourth defendants, that is that I found that the party and party component of the work conducted by the fourth defendant relating to matters and issues in the main action were limited to the fit-out claim (second finding).
At the taxation, counsel for the parties engaged in the following exchange in relation to the interplay between the action and the main action in discussing item 27 of the Bill of Costs:
Coulson Ms: Now if I could just respond firstly to the broader ambit issues that my learned friend raised. He spoke of the fact that the fourth defendant's solicitors needed to be appraised of and keep abreast of the developments in the main action, but only in respect of the fit-out claim. I just wanted to make the point that it's not possible to look at the fit-out claim as in a vacuum. You don't look at these documents and just find the fit-out claim.
Now, I appreciate that in the statement of claim it in a particular point, but it doesn't mean that you can - or that you would be expected to only turn your mind to that portion of it. It is necessary for it to be considered and reviewed in its entirety. And, of course, for particular focus to be given to the fit-out claim. I appreciate that, but it can't be excised from the main action.
Penglis Mr: Sorry, is your submission that it is necessary to do that, as opposed to practical, because we strongly disagree that it's necessary to look at the rest of the document. You may well want to peruse it to see what's there. I understand that, but to actually study it and – is that what you're putting?
Coulson Ms: No, not to study it.
Penglis Mr: No. All right.
Coulson Ms: It needs to be perused.
Penglis Mr: Ok
Coulson Ms: But the fit-out portion needs to be studied.
Penglis Mr: Yes. We accept that.[2]
[2] Action ts 1734.
In making submissions about other items at the taxation, counsel for the fourth defendants stated:
… the allegations that were made against the receivers were very serious allegations. So the allegations were that they had acted in bad faith and improperly in conflict of interest.
In terms of the statement of claim, I don't quarrel with the fact that … [i]t's not at the high end difficult statement of claims. You will see much more difficult pleadings out there. But it is – it's the importance of the issues that were at the heart of this litigation that really takes this matter to a different level which is what Tottle J would have had regard to in the special costs application[3]
[3] Action ts 1587.
At the review, counsel for the fourth defendants submitted that the interplay between the main action and the action was not put with sufficient precision at the taxation. In summary, at the review counsel for the fourth defendants submitted that the interplay is properly characterised as follows:
(a)the liability case against the fourth defendants was founded upon the 2013 statement of claim filed in the main action (2013 statement of claim), not the final version of the statement of claim filed on 12 February 2018 in the main action;
(b)the fit‑out claim did not exist at the time that the fourth defendants were alleged to have breached their duties ‑ rather the 2013 statement of claim was the relevant document. Therefore, the fourth defendants' defence at the trial of the action was concerned with the effect of the 2013 documents on all of the allegations in the 2013 statement of claim. This meant that the fourth defendants were required to conduct a close examination of whether the plaintiffs could make out a whole range of causes of action pleaded in the 2013 statement of claim;
(c)later amendments to the pleadings in the main action only meant that the potential quantum of the exposure of the fourth defendants was limited to the fit‑out claim;
(d)the fourth defendants would have been required to participate heavily in the trial of the main action to represent their interests - they would have been present for a large part of the evidence adduced because the extent to which they may be liable in the action depended on whether the plaintiffs could make out all of the allegations pleaded in the main action. Although that participation would not involve the fourth defendants putting on any evidence, the fourth defendants' role would be to cross-examine the plaintiffs' witnesses and deal with each of the causes of action pleaded in the 2013 statement of claim in a way that would not overlap with the financiers' role in the main action;
(e)if the statement of claim in this action was looked at by itself, one could reach the conclusion that it was not overly complex because it was only 22 paragraphs. However, that is not an accurate view of this action as the statement of claim effectively annexed two statements of claim from the main action and required the fourth defendants' participation as an interested party in the trial of the main action due to the fact that the evidence in the main action would have been evidence in the action.
The plaintiffs made the following submissions in response upon the review in relation to the interplay between the main action and the action:
(a)while accepting that the interplay between the main action and the action was not limited to the fit‑out claim, in the context of preparation for trial, the only overlap between the action and the main action was the fit‑out claim;
(b)the plaintiffs amended their statement of claim in the main action on 6 February 2014 to include only the fit‑out claim and the lessee claims and then again on 27 May 2014 to include only the fit‑out claim - at this point a line was drawn between the claims against Bankwest as tenant, and the claims against Bankwest as financier, the latter of which had no overlap with the action. The fourth defendants filed their defence in the action on 4 August 2015 – well after those amendments to the pleadings in the main action;
(c)the majority of the preparation for trial, as evidenced by counsel fee notes (Mr Collinson SC's invoices from March 2017 to March 2018, Ms Dias' invoices from December 2016 to September 2017 and Mr Weinstock's invoices February to April 2018), was undertaken after those amendments to the statement of claim in the main action had resulted in the only connection between the main action and the action being the fit-out claim; and
(d)the factor to be considering in arriving at an allowance for preparation for case was the practical interconnection between the main action and the action at the time that the relevant work was completed.
In considering the interplay between the main action and the action for the purposes of preparation of case, it is instructive to look to the reasons delivered by Tottle J in his decision on the costs of this action. Tottle J made the following observations regarding the link between the action and the main action[4]:
[4] Westgem Investments Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2018] WASC 156.
2I need to identify the link between this action (the discontinued action) and proceedings CIV 2722 of 2012 (the main action). The plaintiff in the discontinued action is one of several plaintiffs in the main action. The trial of the main action is under way and the hearing is expected to be completed at the end of July 2018. Until shortly before the trial of the main action, one of the claims advanced by the plaintiffs was a claim known as 'the fit-out claim'. It is unnecessary to explain the nature of this claim.
3One of the defences raised by the first defendant to the fit-out claim was that pursuant to a deed of covenant, and separately pursuant to a settlement and release deed entered into by Westgem in June 2013 (through or by the receivers and managers of Westgem), Westgem assigned away all rights, title and interest to the benefits of an agreement, known as the agreement for lease, upon which Westgem's fit-out claims rested, at least in part. Furthermore, pursuant to the settlement and release deed, Westgem released the first defendant from the fit-out claims.
4In the discontinued action, the plaintiffs sought declaratory relief to the effect that the deed of covenant and the settlement release deed did not release or adversely affect the plaintiffs' claim in the main action, including the fit-out claim.
5The plaintiffs alleged that:
(a)in entering the deed of covenant and the settlement release deed, the receivers had acted in breach of the duties they owed to Westgem;
(b)the first to third defendants had knowingly assisted in those breaches;
(c)the deed of covenant, the settlement release deed and the relevant provisions of those documents did not bear the construction that the first defendant put upon them; and
(d)the first to third defendants had acted unconscionably.
6In the main action in a different factual context, that is, in the context of what is termed 'the cost over-run claims', the plaintiffs allege that the first to third defendants acted unconscionably. In the main action the fit-out claim was discontinued on or about 29 March 2018. No explanation has been offered by the plaintiffs for the discontinuance of the fit-out claim. I infer that they either lacked confidence in the merit of that claim or concluded that it was uneconomic to run the claim or that the claim was not pursued due to a combination of both of those factors.
…
8The plaintiffs say that the discontinued action was required because the defendant banks acted unconscionably in advancing the defence that the fit-out claim had been released by the deed of covenant and the settlement release deed.
…
14In my judgment, the plaintiff should pay the defendants' costs. The reasoning that leads me to this conclusion is as follows. Firstly, the discontinuance arose from the fit-out claim in the main action and that claim is no longer pursued.(emphasis added)
15Secondly, it seems to me that the plaintiffs' submissions amount to an invitation to make a determination of the merits of the defences raised by the banks in the main action, so far as the fit-out claim was concerned, and in the present action, insofar as those defences relied upon the deed of covenant and the settlement release deed.
(cost reasons).
The costs reasons place particular emphasis on the fit‑out claim in the main action and observe that the abandonment of the fit‑out claim in the main action gives rise to the discontinuance of the action.
Ground 1 - determination
In order to accord with the decision in Soia, I am first required to identify the principles I applied in assessing item 27 of the Bill of Costs at the taxation.
In assessing the allowance, I made the following findings:
(a)the action was listed for a four day trial;
(b)the action was discontinued two months prior to the trial;
(c)the action was case managed together with the main action;
(d)it was reasonable for the fourth defendant to keep appraised of the main action;
(e)the extent to which the main action directly impacted upon the preparation for case in the action was limited to the 'fit‑out claim' in the main action;
(f)it was reasonable for a team of solicitors, senior counsel and junior counsel to conduct the work on behalf of the fourth defendants;
(g)the fourth defendants were required to review the witness statement of Geoffrey Totterdell and to draft the witness statements of Mr Landgon and Mr Mentha;
(h)the solicitors for the fourth defendant were required to brief counsel and to conduct legal research in relation to numerous legal issues arising in the proceedings;
(i)the issues were serious and important but, for the purposes of preparation of case for trial, were not overly complex such as to justify an allowance greater than $260,000 - in arriving at this finding I had regard to, inter alia, the fourth defendants' Summary of Issues in Dispute dated 26 August 2016;
(j)it was not possible to determine, by having regard to the schedule, the amount that was reasonable by reference to the number of hours claimed for each practitioner or for the individual items of work that each of those practitioners performed;
(k)the amount assessed as reasonable was a global amount having regard to my experience as a taxing officer and having reviewed all of the documents on the court file in this proceeding, relevant documents filed in the main action and all other documents referred to by the fourth defendants at the taxation to justify the amount claimed for Item 27.
My determination of the allowance took into account the following material before me at the taxation:
(a)the court files in the action and the main action;
(b)the Bill of Costs and attached schedule 13;
(c)counsel for the fourth defendants' fee notes;
(d)HOA, AFL;
(e)2013 documents;
(f)the plaintiffs' Notice of Objections to the Bill of Costs filed on 7 November 2019;
(g)correspondence between the parties to the action and the main action referred to me during the taxation; and
(h)oral submissions of counsel for each of the plaintiffs and the fourth defendants at the taxation.
I did not made a finding that the action was not complex. I made a finding that it was not overly complex. This finding must be considered in the context in which I allowed an amount of $260,000 for preparation for case. It is to be inferred from the allowance that the action was of sufficient complexity and seriousness to warrant an allowance in excess of the Scale (the Scale limit for this item is $58,080).
My finding, in relation to the complexity of the work associated with the preparation for case, was that the issues were not overly complex such as to justify an amount more than the allowance.
My finding, in relation to the interplay between the main action and the action was that, for the work associated with a significant proportion of the preparation for case, the direct impact that the main action had on the on the action was limited to the fit‑out claim. This view is supported by the documents I have identified, the costs reasons, the submissions of counsel for each of the fourth defendants and the plaintiff at both the taxation and the review.
Having formed the view that I did not make either of the findings as contended for by the fourth defendants, it is then not possible for me to have relied upon the findings in support of the disallowance. That is sufficient to dismiss the ground 1 objection.
However, I will proceed to determine the ground 1 objection on the basis that the fourth defendant contends that I erred in my assessment of the complexity of the issues and the interplay between the action and the main action such that no taxing officer, acting reasonably, could have ever taxed item 27 in the amount of the allowance. I will also determine the review on the basis that fourth defendant contends that it can inferred from the disallowance that my discretion has been exercised in a manner that is manifestly wrong.
It is useful to identify the legal principles which govern my exercise of discretion in assessing the allowance.
Tottle J made a special costs order pursuant to s 280(2) of Legal Profession act 2008 (WA) (the Act) which had the effect of removing the Scale limit for item 27 of the Bill of Costs. Section 280(2) of the Act provides:
(2)Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -
(a)order the payment of costs above those fixed by the determination;
(b)fix higher limits of costs than those fixed in the determination;
(c) remove limits on costs fixed in the determination;
(d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
It is well established law that a special costs order does not mandate that a taxing officer must allow more than the maximum amount allowable for an item under the Scale. In Mentha as Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq) [2014] WASC 478 (S) [5], Martin CJ observed:
Moreover, it must be remembered that when an order is sought removing limits on costs fixed in an applicable determination pursuant to s 280(2)(c), the order made will do no more than that. Accordingly, the court considering the application for such an order need go no further than determine whether there is a fairly arguable case for the allowance of costs at an amount greater than the amount allowable under the relevant determination - it is for the taxing officer to consider the necessity for the work that was done and the reasonableness of the remuneration claimed (citations omitted).
In Sino Iron Pty Ltd -v- Minerology Pty Ltd [No 2] [2017] WASCA 76 (S) [21], the Court of Appeal (Buss P, Murphy JA and Beech JA) said:
In our view, having formed the opinion required by s 280(2) of the Act, it was appropriate to leave it to the experience and common sense of the taxing officer to consider the reasonableness of and necessity for the work undertaken.
In determining the allowance, I am to have regard to the work necessarily and reasonably performed by the fourth defendants in preparing for case. In City of Belmont v Saldanha [No 2] [2018] WASC 278 at [66], Vaughan J said:
The registrar's approach to the determination of allowances for the various items was conventional and in accordance with well-established principles. As was stated in W & A Gilbey Ltd v Continental Liqueurs Pty Ltd:
… a taxing officer in a party and party taxation should allow a successful litigant, in whose favour an order for costs has been made, a just and reasonable amount in respect of each item claimed in the litigant's bill of costs where such item was, in fact, incurred on behalf of the litigant by his solicitor in respect of some step or matter in the litigation which either (1) was necessarily taken or performed for the attainment of justice or the maintaining or defending of the litigant's rights in the circumstances of the particular case, or, (2) although not necessarily taken or performed for such purposes, would reasonably have been taken or performed for any of those purposes by a solicitor acting at the time when it was taken or performed without extravagance in conformity with the then situation of the case and not in conflict with the statute or rules, the practice of the court, and the usages of the legal profession appertaining to such case. (citations omitted).
Accordingly, in assessing an amount to allow for item 27 at the taxation, I was required, first and foremost, to be satisfied of the reasonableness and the necessity of the work undertaken by the fourth defendants in their preparation for case. If I determine that the allowance should be an amount in excess of the Scale then, the limit of the Scale having been removed, I am at liberty to allow that amount.
At the outset, the most important point to highlight is that the allowance was for preparation for case. The allowance must be reviewed in that context. It would be to recreate history upon review to suggest the allowance was based upon the finding that the only connection between the main action and the action was the fit-out claim. At the taxation, I accepted that there was an interplay between the action and the main action, not only in relation to the fit-out claim, but also in relation to the causes of action pleaded in the 2013 statement of claim. I accepted that those issues had to be considered and addressed by the fourth defendants. This interplay was relevant to a number of items in the Bill of Costs as detailed below. These items are illustrative of the fact that I accepted that there was ongoing interplay between the action and the main action. It is not intended to be an exhaustive list of all of the occasions on which I made an allowance taking that interplay into consideration.
Item 7 - Defence
I made the following comments in relation to the allowance of $27,500 for item 7 - defence:
However, having regard to the complexity of the circumstances in which this litigation took place, the serious of the allegations against the fourth defendants, the potential consequences of the litigation, I consider that it is appropriate to allow an amount in excess of the scale limit.
… I've had regard to the statement of claim, the fourth defendants; defence, the amended statement of claim and the fourth defendants' amended defence. Although it is relevant to review these pleadings, as I have done, they cannot be viewed out of context. It is reasonable and appropriate for the fourth defendants to undertake legal research, review source documents, conduct strategic analysis, consult with junior and senior counsel, and take instructions from their client in order to draft the defence.
It is not appropriate to compare the amount of time spent by the plaintiff in drafting the statement of claim to that spent on drafting the defence as the fourth defendants were not parties to the main proceedings and so had a more onerous task.[5]
[5] Action ts 1588
Item 11 - Mediation 14 December 2015
This was the mediation listed in the main action, which was attended by the fourth defendants for two hours on the first day of mediation. I allowed an amount of $10,000 and took into account that the fourth defendants filed a position paper containing a detailed analysis of the action, in the context of the main action, and was required to review the position papers of each of the plaintiffs and the first to third defendants in the main action.
Item 13 - Strategic Conference 25 August 2016
At the strategic conference held in both the main action and the action on 25 August 2016, junior counsel for the fourth defendants said:
Your honour, I have nothing to add today I simply wish to note what my [indistinct] have said regarding the course adopted this morning has been very helpful. We will work with them to finalise the minute of order. I also note that we have filed a list of issues in proceedings CIV 2340 which your Honour should have received on Wednesday, I believe.
I don't propose to [indistinct] that in any detail, but I would simply note that although the proceeding is somewhat of a satellite one it's no less important at least as far as the receivers are concerned. Your Honour will see from list that some serious allegations are made, there breaches of duties against them, and they obviously would like those resolved as soon as possible at the earliest opportunity so I would therefore endorse what Mr Jopling has said regarding the need for the parties to adhere to the timetable going forward.[6]
[6] Main Action ts 345.
In allowing an amount of $15,422 for item 13, I had regard to the interplay between the action and the main action. I formed the view that it was reasonable for the fourth defendants to review the summary of issues in dispute filed by each of the parties in the main action and in the action and to file their own summary of issues in dispute. I also found that it was necessary and reasonable for the fourth defendants to review and consider the affidavits of Mr Gentilli dated 22 August 2016 and Mr Forbes dated 23 August 2016, both filed in the main action.
Item 19 - Strategic Conference 20 February 2018
In allowing $2,134 for item 19, I accepted that it was reasonable for senior counsel to attend the strategic conference in the main action in order to keep appraised on the main action.
Determination of allowance
I exercised my discretion in making the allowance having regard to the interplay between the action and the main action and the attendant complexity of the action. It was a matter of attributing weight to that interplay for the purposes of the fourth defendants' preparation for case.
The fourth defendants' submission, made for the first time upon review, that they would have had to be involved in the trial of the main action, including cross‑examining witnesses is simply that ‑ a submission. The fourth defendants did not rely upon any work product to establish that their preparation for case actually encompassed preparation for cross‑examination of witnesses in the main action. It was not possible or appropriate for a taxing officer to speculate as to what may have happened at a trial that did not proceed - I am not determining an allowance for work that may have been required to be done in the future.
In any event, I arrived at the allowance by reference to what was actually and reasonably done by the fourth defendants in preparing for trial, not what would have been required to be done or what might have been done.
Further, the focus of the Receivers' Review Request and the Receivers' Reply was an objection to the disallowance. While I accept that an error in principle may be inferred from an amount that has been disallowed, it is my view that the correct starting point in taxing item 27 - preparation for case - is to make an assessment of what is a reasonable and proper allowance on a party and party basis. To focus on the amount disallowed would encourage receiving parties to claim higher amounts than they may otherwise claim on a party and party basis in a bill of costs, relying upon the fact that the taxing officer will not make a large disallowance.
Further, as established in Craig and accepted by both parties, I am to have regard to my experience gained in other taxations in exercising my judicial discretion in taxing the Bill of Costs. I have particular experience in taxing another bill of costs in the action - the first to third defendants Amended Bill of Costs dated 15 April 2020. The plaintiffs and the fourth defendants accepted that I it was appropriate to have regard to that taxation as part of my overall experience.[7] In taxing that bill of costs, I allowed an amount of $107,413 for preparation for case. It was appropriate to allow a significantly higher sum for preparation of case for the fourth defendants, given they were not parties to the main action (as opposed to the first to third defendants). That is what I did. That taxation forms part of my overall experience to which I have had regard. It reinforces my detailed knowledge of the issues arising in the action and my understanding of the interplay between the main action and the action.
[7] Action ts 1786.
I accept now, as I did at the taxation, that the main action involved a large number of complex factual and legal issues The trial in the main action was listed for 16 weeks (four days a week) commencing on 4 April 2018. The trial for this action was listed for four days commencing on 14 May 2018 - during a break in the trial of the main action. It was a standalone trial, although embedded within the main action. The fourth defendants had to be appraised of the issues in the main action and keep abreast of the progress of the main action.
I also accept now, as I did at the taxation, that the action involved very important and serious issues for the fourth defendants given the potential for professional sanctions, personal liability and prosecution by the Australian Securities and Investment Commission.
In summary, the essence of the ground 1 objection is that the quantum of the disallowance constitutes an error in principle because no reasonable taxing officer could have ever exercised his or her discretion as I did.
Where an objection is as to quantum, it is only in rare circumstances that such an objection will amount to an error in principle. In order for the fourth defendants to achieve a different result upon the review than they did at taxation, they must establish that the allowance was so low (or the disallowance so high) as be infected by Wednesbury unreasonableness - that is so unreasonable that no reasonable taxing officer could ever have come to it.[8]
[8] Larussa v Carr at [39] referring to the principle set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 per Lord Greene MR (adopted in Australia by the High Court in Parramatta City Council v Pestell (1972) 128 CLR 305).
For the reasons stated, I do not consider that no taking officer, acting reasonably, could ever have taxed item 27 in the amount of $260,000. Accordingly, there is no error in principle established by the ground 1 objection.
The ground 1 objection is dismissed.
Ground 2 - relevance of time claimed for counsel
The fourth defendants submit that I made an error in principle by making a manifestly unreasonable allowance for item 27 without having regard to the relevance of the number of hours spent by counsel in preparation for case, such that no taxing officer, acting reasonably, could have ever made the allowance.
The fourth defendants say that the allowance is inconsistent with my finding that it was reasonable for the fourth defendants to have adopted a team approach consisting of senior counsel, junior counsel, senior practitioners, junior practitioners and clerks. The manifest unreasonableness of the allowance is evident, it is submitted, from the fact that the allowance is less than the total time claimed for counsel, the latter being $306,386.85. The fourth defendants submit that I did not have sufficient regard to the time claimed by counsel in assessing the allowance.
In response the plaintiffs say that the ground 2 objection goes to quantum only and can only be an error in principle if no taxing officer, acting reasonably, could ever have taxed item 27 in the amount of the allowance. The plaintiffs say that evidence of the amount actually charged or claimed by counsel does not establish that the allowance is manifestly unreasonable.
Ground 2 determination
In determining the allowance, I made a finding that it was reasonable for a team of solicitors, senior counsel and junior counsel to conduct the work on behalf of the fourth defendants. I also accepted that it was reasonable for the solicitors for the fourth defendants to brief counsel and to conduct legal research in preparing for case.
The amount actually charged or claimed by counsel is not the starting point in determining the allowance. In determining the allowance I made an assessment of what was a reasonable and proper allowance on a party and party basis for preparation for case, taking into consideration a team approach, and factoring in my experience as a taxing officer.
The ground 2 objection is an objection as to quantum. I do not consider that no taxing officer, acting reasonably, could have ever arrived at the allowance. Therefore, the ground 2 objection does not constitute an error in principle and is dismissed.
Ground 3 - departure from objections
The fourth defendants made the following submissions in support of ground 3:
(a)at the taxation, the plaintiffs submitted that the schedules were not in compliance with Supreme Court Practice Direction 4.7.3 (PD 4.7.3) and that they were so unreliable that I should have little regard to them (referred to by the fourth defendants as the fresh objections);
(b)the fresh objections were not made in the plaintiffs' objections to the Bill of Costs filed on 7 November 2019 (objections);
(c)the plaintiffs only gave the fourth defendants notice of the fresh objections on 3 February 2020 - one day before the taxation. Had adequate notice been given, the fourth defendants would have been in a position to address the fresh objections which would have increased the possibility that a greater allowance would have been made;
(d)the fourth defendants' request to adjourn the taxation to allow more detailed schedules to be provided was not granted;
(e)the effect of the fresh objections, in departing from the objections and in circumstances where I refused to adjourn the taxation, was to deny the fourth defendants procedural fairness; and
(f)such denial of procedural fairness amounts to an error in principle.
The plaintiffs made the following submissions in response:
(a)the purpose of the objections, consistent with PD 4.7.3, was to state the ground of the objection and to state a reasonable allowance for each item - this is exactly what the objections did. The fresh objections do not depart from the objections - they were simply submissions in relation to the unreliability of the schedule in support of the amount claimed;
(b)the onus of proving the amount of reasonable costs is with fourth defendants. The plaintiffs did not request a more detailed schedule, it made submissions as to the reliability of that schedule to justify the amount claimed by the fourth defendants;
(c)counsel for the fourth defendants made a conscious forensic decision not to produce a more comprehensive schedule. No error is demonstrated in dismissing the fourth defendants' request to adjourn the taxation to allow more comprehensive schedules to be provided; and
(d)it is inconceivable that the fourth defendants did not anticipate objections based upon lack of detail in the schedule given the earlier hearing in relation to the production of invoices by the fourth defendant. In determining that the fourth defendants were not required to produce those invoices to the plaintiffs on the plaintiffs' preliminary application in the taxation, I stated:
In my view, the fourth defendants should not be compelled to produce its solicitors' accounts. If the fourth defendants cannot establish that the costs claimed are reasonable, then the plaintiffs receive the benefit of the doubt and those costs will be taxed off the bill of costs. This is the case regardless of the size of the bill of costs and is consistent with O 66 r 42 RSC, Supreme Court Practice Direction 4.7.3 and the EMI Records Ltd and Soord decisions.[9]
[9] Westgem Investments Pty Ltd (Receivers and Managers) (Administrators Appointed) & Ors v Commonwealth Bank of Australia Ltd & Ors [No 2] [2019] WASC 377 [14].
Ground 3 determination
Practice Direction 4.7.3 provides 'guidance as to the use of schedules in bills of costs … and the seeking of directions from the taxing officer prior to the taxation commencing.' A schedule may be provided, but is not mandated. Given that, on a party and party taxation, the onus is upon the receiving party to establish the costs have been reasonably and properly incurred, it is in the receiving party's interest to provide a schedule that assists the taxing officer. However, the decision is ultimately one for the receiving party as to how they will satisfy that onus.
The fourth defendant provided the schedule in support of item 27. The plaintiffs were entitled to submit, at taxation, that the schedule was of little assistance to me. That objection did not amount to a denial of procedural fairness. Nor did my refusal to adjourn the taxation to allow the fourth defendant to provide a more detailed schedule. The fourth defendants had the onus of establishing what work was reasonably and properly incurred - if they chose to do so by providing that schedule, then that is a forensic decision they were entitled to make. The fourth defendants were also afforded the opportunity of being heard at taxation - there was no limit placed on the material that they sought to rely upon, the submissions that they sought to make and the work product they sought to refer to it in support of their claim for the costs of preparation for case.
In determining the allowance, I had regard to the schedule - it was a matter of the weight that I placed on the schedule. I determined that, given the detail provided in the schedule, I could not arrive at an allowance by reference to the number of hours claimed for each individual practitioner or for individual items of works completed. Rather I arrived at global amount for the allowance having regard to my experience as a taxing officer, all of the documents on the court file in the action and the main action, the submissions of counsel for the fourth defendants at taxation and the Bill of Costs, including the schedule.
I do not find that the fourth defendants were denied procedural fairness on the basis of the objections or the fresh objections. Accordingly, I dismiss the ground 3 objection.
Summary
I dismiss each of the fourth defendants' objections to the allowance and/or the disallowance on the basis that none of the grounds for the objection amount to an error in principle.
I propose to sign the allocator in the amount of $465,972.12 less an amount that reflects the plaintiffs' costs of the review. I will hear the parties as to a reasonable amount for the costs of the review.
ANNEXURE 'A'
ANNEXURE 'B'
NO
DATE
DOCUMENT DESCRIPTION
PARAGRAPH
1.
19/10/2006
Heads of Agreement Raine Square
[15]
2.
04/2009
Agreement for Lease
[16]
3.
17/10/2012
Statement of Claim filed in CIV 2722 of 2012
[25]
4.
19/04/2013
Amended Statement of Claim filed in CIV 2722 of 2012
[25], [34]
5.
13/06/2013
Raine Square Settlement and Release Deed
[13]
6.
13/06/2013
Deed of Covenant
[13]
7.
13/06/2013
Retention and Acknowledgement Deed
[13]
8.
18/06/2013
Contract of Sale
[24]
9.
15/08/2013
Letter from KWM to Jackson McDonald
[26]
10.
21/08/2013
Letter from KWM to Jackson McDonald
[27]
11.
30/08/2013
Statement of Claim
[29]
12.
21/10/2013
Request for Further and Better Particulars of Statement of Claim made on 18 October 2013 and filed 21 October 2013
[34]
13.
03/10/2014
Amended Second Substituted Statement of Claim in action CIV 2722 of 2012
[34]
14.
23/03/2015
Answer to First, Second and Third Defendants' Request for Further and Better Particulars
[34]
15.
06/05/2015
Letter from Jackson McDonald to Norton Rose Fulbright Australia
[36]
16.
23/03/2016
First to Third Defendants' Defence to the Second Further Amended Second Substituted Statement of Claim filed in CIV 2722 of 2012
[37]
17.
29/07/2016
Amended Statement of Claim
[37], [40]
18.
12/02/2018
Fifth Further Amended Second Substituted Statement of Claim (Fifth ASOC) filed in CIV 2722 of 2012
[30]
19.
23/03/2018
Amended Defence and Counterclaim to Fifth Further Amended Second Substituted Statement of Claim filed in CIV 2722 of 2012
[31]
20.
07/11/2019
Notice of Objections to Fourth Defendants' Bill of Costs for Taxation
[46]
21.
21/02/2020
Receivers Request for Review of Taxation
[3]
22.
23/03/2020
Plaintiff's Response to the Receivers Request for Review of Taxation ('Westgem Response')
[1], [4], [31], [39], [41], [45], [46], [47]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KC
Associate to Registrar Whitby
18 JUNE 2020
0
12
4