Wise v Keilo Jane Wise as executrix of the estate of Audrey Vera Wise - [2024] WASC 217 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   WISE -v- KEILO JANE WISE as executrix of the estate of AUDREY VERA WISE [2024] WASC 217 (S)
CORAM:   WHITBY J
HEARD:   18 SEPTEMBER 2024
DELIVERED          :   25 SEPTEMBER 2024
FILE NO/S:   CIV 3024 of 2018
BETWEEN:   STEPHEN LESLIE WISE
First Plaintiff
KATHY WISE
Second Plaintiff
AND
KEILO JANE WISE as executrix of the estate of AUDREY VERA WISE
First Defendant
KEILO JANE WISE as beneficiary of the estate of AUDREY VERA WISE
Second Defendant

Catchwords:

Practice and procedure - Costs - Appropriate costs order following trial - Joint and several liability of plaintiffs to pay costs - Whether costs should be paid from the first plaintiff's share of the residuary estate of the estate - Special costs orders removing scale limits - Costs occasioned by failure to admit facts contained in a notice to admit facts

Legislation:

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020
Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022
Legal Profession Uniform Law Application Act 2022 (WA)
Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Plaintiffs jointly and severally pay the first defendant's costs of the action
Liability of the second plaintiff to commence on 28 September 2022

Representation:

Counsel:

First Plaintiff	:	S D Tribble
Second Plaintiff	:	S D Tribble
First Defendant	:	L A Tsaknis
Second Defendant	:	L A Tsaknis

Solicitors:

First Plaintiff	:	Dentons Australia
Second Plaintiff	:	Dentons Australia
First Defendant	:	Cullen Macleod Lawyers
Second Defendant	:	Cullen Macleod Lawyers

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

Kidd v The State of Western Australia [2015] WASCA 62 (S)
Latoudis v Casey (1990) 170 CLR 534
National Trustees Executors and Agency Company of Australasia Limited v Barnes (1941) 64 CLR 268
Re Dodson; Dodson v Dodson (No 2) [2020] VSC 266
Segal v Osborne (No 2) [2016] NSWSC 1328
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S)
Tipperary Developments Pty Ltd v State of Western Australia [2009] WASCA 126
Westfield Qld No.1 Pty Ltd & Anor v Lend Lease Real Estate Investments Limited & Ors [2008] NSWSC 610
Wise v Wise [2024] WASC 217

WHITBY J:

I delivered my judgment in this matter on 17 June 2024, following a nine-day trial on 8 to 12 and 15 to 18 April 2024. I ordered that the plaintiffs' claim be dismissed and that, if the parties could not reach agreement on the question of costs, the issues of costs be programmed to a hearing. The parties could not reach agreement on the question of costs. These reasons deal with the issue of appropriate costs orders following trial. They should be read together with my reasons in Wise v Wise [2024] WASC 217 (Reasons).

Costs orders sought by the plaintiffs

The plaintiffs seek the following orders:[1]
[1] Plaintiffs’ minute of proposed orders dated 23 August 2024.
1.The First Plaintiff pay the First Defendant's costs of the action brought by the First Plaintiff to be taxed if not agreed.
2.The Second Plaintiff pay the First Defendant's costs of the action brought by the Second Plaintiff to be taxed if not agreed.
3.The First Defendant pay the Plaintiffs' costs occasioned by the defence . pleaded at paragraph 20 of the Amended Defence:
(a)on a party-party basis until 18 March 2024; and
(b)on an indemnity basis from 18 March 2024.
4.The First Defendant bear her own costs occasioned by the defence pleaded at paragraph 20 of the Amended Defence.
5.The First Defendant pay the Plaintiffs' costs occasioned by the failure of the First Defendant to agree to the facts the subject of the Plaintiffs' Notices to Admit Facts dated 6 March 2024, 13 March 2024 and 19 March 2024 (Notices) within the time period stated in the Notices.
6.There be no orders as to the parties' costs occasioned by the Plaintiffs' Notice to Admit Facts dated 28 March 2024 and the First Defendant's Notice to Admit Facts dated 3 April 2024.

The plaintiffs relied upon the affidavit of Simon David Tribble sworn 23 August 2024 (Tribble Affidavit).

Costs orders sought by the first defendant

The first defendant seeks the following orders:[2]
[2] First defendant's further amended minute of costs orders dated 17 September 2024 and orally amended during the hearing on 18 September 2024.
1.The plaintiffs jointly and severally pay the first defendant's costs of the action, the liability of the second plaintiff to commence on 28 September 2022, to be assessed if not agreed.
2.Without limiting the ability of the first defendant to recover costs, the costs to be paid by the first plaintiff be paid out of the first plaintiff's share of the residuary estate under the will of the deceased.
3.To the extent that the costs of the first defendant are not recovered from the plaintiffs the first defendant's costs be paid out of the residuary estate of the deceased on a trustee basis.

4.Pursuant to section 141(3) of the Legal Profession Uniform Law Application Act 2022(WA) in respect of the costs payable by the plaintiffs:
(a)the hourly, maximum and daily rate provided for under Item 22 of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (Determination) to counsel for the first defendant be increased on and from 1 March 2024 by 25% and the preparation time allowed for counsel for the first defendant be increased to such time as the assessing officer considers reasonable; and
(b)the preparation time provided for under Item 19 of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 and the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 allowed to the first defendant be increased from 120 hours and 130 hours respectively, to such time as the assessing officer considers reasonable.

5.The plaintiffs pay the first defendant:
(a)the costs of preparing its written statement of evidence filed on 19 April 2024;
(b)reasonable costs for the amount paid to accountant Sandra Knight at trial for her preparation time and attendance at trial; and
(c)the cost of transcript.

6.There be no order as to costs in respect of the plaintiffs' notices to admit filed 6 March 2024, 13 March 2024, 19 March 2024 and 28 March 2024.

The first defendant relied upon on the affidavit of Daniel Ryan Gill sworn 5 August 2024 (Gill Affidavit).

Issues

The plaintiffs and the first defendant agree that costs should follow the event, that is that the plaintiffs, as the unsuccessful parties, should pay the first defendant's costs of the action. There is also no dispute that the first defendant, to the extent that her costs are not recovered from the plaintiffs, is entitled to have her costs paid out of the residuary estate of the deceased on a trustee basis in accordance with O 66 r 9 of the Rules of the Supreme Court 1971(WA) (RSC).
The issue upon which the parties substantially differ is whether the first plaintiff should pay the first defendant's costs from his share of the residuary estate under Audrey's will. The first defendant submits that he should, while the first plaintiff submits that he should not. This is the first issue that requires determination.
The parties are also in dispute about several other matters relating to costs. Those disputes give rise to following issues:
(1)should the plaintiffs, jointly and severally, be ordered to pay the first defendant's costs?;
(2)should the first defendant pay the plaintiffs' costs occasioned by the first defendant's pleading a limitation defence?;
(3)is the first defendant entitled to any special costs orders?; and
(4)should the first defendant pay the plaintiffs' costs occasioned by the plaintiffs' notices to admit facts?

Should the first plaintiff pay the first defendant's costs from his share of the residuary estate under Audrey's will?

The effect of Audrey's will, by cl 6.1 and cl 6.2,[3] is that any costs received by the first defendant comprise part of Audrey's residuary estate which is to be divided equally between the first plaintiff and the second defendant.
[3] Exhibit 196.
The first defendant submits that, absent an order that the first defendant's costs be paid out of the first plaintiff's share of the residuary estate, the second defendant would have her share of the residuary estate diminished because of the division of funds between her and the first plaintiff.
The first defendant relies upon the cases of Westfield Qld No. 1 Pty Ltd & Anor v Lend Lease Real Estate Investments Limited & Ors,[4] Re Dodson; Dodson v Dodson (No 2)[5] and Segal v Osborne (No 2)[6] in support of her submissions.
[4] Westfield Qld No. 1 Pty Ltd & Anor v Lend Lease Real Estate Investments Limited & Ors [2008] NSWSC 610 (Westfield).
[5] Re Dodson; Dodson v Dodson (No 2) [2020] VSC 266 (Dodson).
[6] Segal v Osborne (No 2) [2016] NSWSC 1328 (Segal).
The first plaintiff submits that it is the first defendant, as the successful party, who is entitled to recover her costs, not the second defendant. The first plaintiff says that the order sought by the first defendant is not appropriate because such an order:
(1)is punitive, rather than compensatory, in nature;
(2)would place a prejudicial burden on the first plaintiff;
(3)fails to recognise that the first defendant sought to use estate money to advance an outcome that only the second defendant benefitted from;
(4)would pose difficulties for a taxing officer as previous costs orders made in the proceedings do not reflect the same position; and
(5)was not previously proposed by the first defendant, that is the first plaintiff was not given advance notice by the first defendant that costs orders would be sought on this basis.
The cases relied upon by the first defendant have their genesis in in the decision of the High Court in National Trustees Executors and Agency Company of Australasia Limited v Barnes.[7] In Barnes, nine of 37 beneficiaries commenced proceedings in which they alleged that the executors, who were not beneficiaries, had breached their duties and sought their removal as executors. The executors successfully defended the action. The High Court held that the shares of the beneficiaries who brought the action should be first used to satisfy the costs of the executors. The rationale for doing so was expressed by Williams J as follows:[8]
If a trustee is sued by beneficiaries who complain of some act or omission by the trustee, he is entitled to defend his conduct as an incident of administration. Even if he fails in the suit, he may be allowed his costs out of the estate, but, if he succeeds, as is this case, he is clearly entitled thereto. At the same time the indemnity must be given effect to in such a way as to make the burden fall upon the beneficiaries equitably having regard to the circumstances under which the costs, charges and expenses were incurred. Here they were incurred as a result of the action of nine out of thirty-seven beneficiaries, so that the shares of these beneficiaries should be exhausted before any part of the burden is placed on the shares of the twenty-eight.
[7] National Trustees Executors and Agency Company of Australasia Limited v Barnes (1941) 64 CLR 268 (Barnes).
[8] Barnes, 279.
In Westfield, the plaintiffs unsuccessfully sought orders for the sale of trust assets and the appointment of receivers. Einstein J found that the plaintiffs had sought to invoke the administration jurisdiction of the court to circumvent the terms of the trust and wind up the trust. His Honour held that the plaintiffs, as the parties who caused the costs to be incurred, should pay the executors costs on an indemnity basis. His Honour declined to make an order that the costs of the executors be recovered from the trust fund.[9]
[9] Westfield [21].
The case of Dodson involved a claim by the plaintiff for further provision from the estate of the deceased. The plaintiff was ultimately the unsuccessful party. The court ordered that the that costs of the executor should be paid out of the unsuccessful beneficiary's share (that was the plaintiff's), having regard to the fact that the plaintiff had unreasonably rejected a Calderbank offer. The court was of the view that, in these circumstances, it would have been unjust for any part of the costs of the proceedings to be borne by the other beneficiary's share of the residue of the estate.[10]
[10] Dodson [37].
In Segal, the plaintiff alleged breaches of duty by trustees who had been appointed by the Court of Appeal in previous proceedings ordering the sale of a property. The plaintiff was unsuccessful. The court ordered the plaintiff to pay the first and second defendant's costs on an indemnity basis, and if those costs were not paid within two months, those costs could be retained out of the trust fund notionally held for the plaintiff.[11]
[11] Segal [52].
What is clear from each of these cases is that the court has a general discretion to make orders in relation to costs, that each case must be considered on its own facts and the overriding principle is that the court should make an order that is fair and just between the parties.
The following facts of this case are relevant to the exercise of the court's discretion to award costs.
Firstly, the first defendant chose to defend the proceedings, while the second defendant chose to abide by the decision of the court. The first defendant, as she was entitled to do, sought to use funds from the estate to defend the proceedings by advancing an outcome that benefitted only the second defendant. The first plaintiff's notional share of the estate was diminished as a result of the first defendant incurring legal costs in defence of these proceedings.
Secondly, the first plaintiff's action was not commenced in his capacity as a beneficiary - his status as a beneficiary of the estate was not a relevant factor in the proceedings.
Thirdly, the first plaintiff was not suing the executor for breach of trust - the cause of action alleged by the first plaintiff arose out of facts that occurred before the estate came into existence.
Taking into account the principle that costs should be compensatory, not punitive,[12] it was the first defendant, as executor of the estate that incurred the cost of defending these proceedings. The second defendant did not bear any personal risk of costs, having chosen to abide by the decision of the court. It would be unfair, in my view, for the second defendant, having sought that protection, to now obtain an order that seeks to avoid the effect on the estate of her making such an election.
[12] Latoudis v Casey (1990) 170 CLR 534, 543.
It is appropriate in my view that, while the first plaintiff should pay the first defendant's costs of the proceedings, those costs should not be out of his share of the estate.

Should the plaintiffs, jointly and severally, be ordered to pay the first defendant's costs?

The first and second plaintiffs seek separate orders that each pay the first defendant's costs of the proceedings.
The first defendant seeks an order that the first and second plaintiffs pay her costs jointly and severally, recognising that the second plaintiff's costs liability only commences from 28 September 2022, the date she was joined to the action.
The order sort by the first defendant is appropriate given that the first and second plaintiffs were represented by the same counsel, relied upon each other's evidence and ran the same case at trial. There is no reason why they should not be jointly and severally liable for the first defendant's costs of the proceedings.

Should the first defendant pay the plaintiffs' costs occasioned by the first defendant pleading a Limitation Act 2005 (WA) (Limitation Act) defence?

The plaintiffs submit that the Limitation Act defence pleaded by the first defendant was doomed to fail and that the first defendant should bear her own costs associated with pleading that defence.
The plaintiffs submit it was unreasonable for the first defendant to maintain her Limitation Act defence after receiving a letter from the plaintiffs' solicitors dated 13 March 2024 in which they detailed the reasons why the defence was hopeless.[13]
[13] Tribble Affidavit [12].
I was not required to determine the merits of the first defendant's Limitation Act defence, given that I found that the plaintiffs had not established their cause of action in proprietary estoppel. It is not appropriate that I now engage in a hypothetical determination of the prospects of success of the first defendant's Limitation Act defence in order to separately determine who should bear the costs of that issue. This approach should be avoided in determining costs. The costs of the Limitation Act defence form part of the proceedings and no separate costs order should be made in relation to it.

Is the first defendant entitled to a special costs order?

The court's power to make a special costs order arises pursuant to O 66 r 51 of the RSC which states:
(1)In a particular action or matter the Court may, instead of making an order for taxation of costs –
(a)make an order fixing the costs of a party to the action or matter in accordance with this Order; or
(b)make an order under the Legal Profession Uniform Law Application Act 2022 section 141(3).
(2)The Court may make an order under subrule (1) on its own motion or on an application by a party.
(3)A party seeking an order under subrule (1)(b) must apply for the order within –
(a)30 days after the date of the relevant judgment; or
(b)another time to be fixed by the court.
The first defendant seeks an order that, pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) (Uniform Law) in respect of the costs payable by the plaintiffs:
(1)the hourly, maximum and daily rate provided for under Item 22 of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (2022 Determination) to counsel for the first defendant be increased on and from 1 March 2024 by 25% and the preparation time allowed for counsel for the first defendant be increased to such time as the assessing officer considers reasonable; and
(2)the preparation time provided for under Item 19 of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (2020 Determination) and the 2022 Determination allowed to the first defendant be increased from 120 hours and 130 hours respectively, to such time as the assessing officer considers reasonable.

The court has the power to make a special costs order pursuant to s 141(3) of the Uniform Law. Section 141 of the Uniform Act is in the following terms:
(1)The following are regulated by an applicable costs determination –
(a)the taxation of bills of law practices;
(b)any other aspect of the costs charged by law practices.
(2)Subsection (1) is subject to -
(a)any costs agreement made in accordance with the Legal Profession Uniform Law (WA) Part 4.3 Division 4 or the corresponding provision of a corresponding law; and
(b)section 146; and
(c)the Legal Aid Commission Act 1976 section 14.
Note for this subsection:
See the Civil Liability Act 2002 section 15L and the Motor Vehicle (Third Party Insurance) Act 1943 section 27A, which affect costs under particular agreements between a law practice and client.
(3)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 any or all 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.
(4)Subsection (1) does not limit the power of a court, a judicial officer or a taxing officer of a court to determine in any particular case before that court, judicial officer or taxing officer the amount of costs allowed.
(5)If a costs determination is in force in respect of any business referred to in section 133(1), any subsidiary legislation fixing or purporting to regulate the remuneration of law practices in respect of that kind of business is of no force or effect.

The principles to be applied in considering whether to make a special costs order pursuant to s 141(3) of the Uniform Act are well established and were set out by the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2][14] in which the Court of Appeal considered the now repealed s 280 of the Legal Profession Act 2008 (WA). That section is in identical terms to s 141 of the Uniform Act. I adopt those principles without repeating them.
[14] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) (Sino Iron).
In determining whether to make a special costs order, the court must answer the following two questions:
(1)is the maximum amount allowable under the relevant item in the applicable costs' determination inadequate in the sense that there is a fairly arguable case that, on taxation, costs may properly be allowed in an amount greater than the maximum amount?; and
(2)does the inadequacy of the costs allowable under the costs determination arise because of the unusual difficulty, complexity or importance of the matter?
If the answer to both questions above is yes, the court make orders as contemplated in s 141 (3) (a) - (d) of the Uniform Act.
Item 22 provides the maximum amount allowable for trial. Under the 2022 Determination, the maximum amount for preparation for trial and the first day of trial for counsel is $21,285. The maximum amount allowable for the second and each successive day of trial for counsel is $4,730. These amounts are based on an hourly rate of $473 for counsel. The first defendant seeks an order that, from 1 March 2024, the hourly rate for counsel be increased by 25% and the limit on preparation time for counsel for trial be removed on the basis that the taxing officer determines the amount that is reasonable.
Item 19 provides the maximum amount allowable for preparation of a case is 120 hours under the 2020 Determination and 130 hours under the 2022 Determination. This equates to a maximum amount under the 2020 Determination of $59,400 and under the 2022 Determination of $65,780. The first defendant essentially seeks an order that the limit on the number of hours be removed and that the taxing officer determine such time as is reasonable.
The first defendant relies upon the Gill Affidavit in support of the special costs order. Mr Gill deposes that:
(1)the first defendant's legal fees totalled $763,071 - $530,883.87 in solicitors fees and $232,188 in counsel fees;
(2)in his estimate, the total solicitor time attributable to preparation of case was 661.6 hours, with 487.5 hours being attributable to himself;
(3)counsel's fees comprise:
(a)$105,138 for interlocutory matters and advice work charged at an hourly rate of $544.50; and
(b)$127,050 for preparation for trial and nine days attendance at trial, being 120 hours at $605 per hour and 9 days of trial at $6,050 per day;
(4)he has worked in the area of disputed deceased estates for over 16 years, 14 of those years practising as a solicitor; and
(5)counsel, Mr Tsaknis, has practised as a barrister and solicitor since 1982 and exclusively as a barrister since 1997.
Mr Gill annexes a table to the Gill Affidavit which sets out the time spent by each solicitor attributable to the preparation of the case.[15]
[15] Gill Affidavit; Annexure 'DRG-2'.
The first defendant submits that the special costs order should be made for the following reasons:
(1)the action was important to the parties having regard to the first plaintiff's and the second defendant's entitlements under the will and the value of the farm which comprised the substantial portion of the estate - the first plaintiff claimed that he was entitled to the entirety of the farm;
(2)it was necessary for the parties to consider and argue extensive factual matters which was reflected in the length of the trial ‑ that being 9 days;
(3)the statement of claim had 5 iterations - each amendment gave rise to different factual scenarios and increased complexity by leading to a line of enquiry by the first defendant as to the credibility and reliability of the plaintiffs' claims; and
(4)given only the plaintiffs could give direct evidence of the May 2008 Meeting, it was necessary for the first defendant to closely consider all of the documentation and behaviour of the plaintiffs and whether the plaintiffs case was plausible and consistent with the surrounding facts.
The plaintiffs submit that a special costs order is not justified because:
(1)the first defendant has not adduced any evidence of the circumstances in which the hourly and daily rates of counsel for the first defendant increased from 1 March 2024, such that the amounts allowable under the 2022 Determination are no longer adequate;
(2)the legal principles in the action were not in dispute or novel;
(3)the first defendant has not annexed a draft bill of costs to an affidavit that specifies the amount to be claimed under each item;
(4)the first defendant has not provided a description or summary of the work performed which comprises the 661 hours spent in preparation of the first defendant's case;
(5)the matter was not 'unusual' given that the legal principles were not substantially in dispute; and
(6)the matter was not of particular importance to the first defendant as whether or not the farm was an asset of the estate made no material difference to the administration of the estate.
The first issue I must determine is whether the maximum amounts allowable under each of Items 19 and 22 are inadequate in the sense that there is a fairly arguable case that, on taxation, costs may properly be allowed in an amount greater than the maximum amount. If I am satisfied that there is a fairly arguable case to that effect, then I must also form the view that the inadequacy of costs arises because of the unusual difficulty, complexity or importance of the matter.
In Sino Iron, the Court of Appeal said the following in relation to each consideration:[16]
A fairly arguable case to that effect will not be established merely because a party incurred greater costs than those allowable under the relevant determination. However, depending on the particular case and all the circumstances, the fact that a party has applied significantly greater legal resources to each step in the litigation than those for which allowance is made under items of the relevant determinations, when viewed in the context of the difficulty, complexity or importance of the matter, may sustain the conclusion that there is a fairly arguable case that each of the items identified is inadequate (and thereby the amount of costs allowable in respect of the matter is inadequate) because of the unusual difficulty, complexity or importance of the matter.
The word unusual … qualifies only the 'difficulty' of the matter, not its 'complexity' or 'importance'. The word 'unusual' in this context means unusual having regard to what one might describe as the usual run of civil cases determined in the court. That essentially involves the making of a value judgment by the court, having regard to the court's experience of the particular case when compared with the usual run of cases. Also, the reference to 'importance' in this context allows the court to have regard to the significance of the issues that arose in the litigation. Significance can arise either because of the significance of the issues to the parties, or because of the significance of the issues to other prospective parties, or to the public or community generally. … the question of unusual difficulty, complexity or importance arises in respect of the proceedings as a whole and not in respect of each individual item in the relevant costs determination. (references to authority omitted)
[16] Sino Iron [14].
In considering the issues of unusual difficulty, complexity or importance, regard must be had to the whole of the proceedings, not to just those items for which the first defendant seeks removal of the maximum limits under the relevant determination.[17]
[17] Kidd v The State of Western Australia [2015] WASCA 62 (S) [10].
The fact that the first defendant incurred costs greater than the maximum amounts allowable under Items 19 and/or 22 is not of itself sufficient reason to remove the limits. The same can be said for the fact that counsel has charged at a rate higher than the maximum hourly rate provided for in the relevant determination. The amount of costs incurred by the first defendant must be considered in the context of the unusual difficulty, complexity or importance of the case as a whole.
I do not consider that this case was unusually difficult, that is it was not out of the run of usual cases. While the case was naturally important to the plaintiffs and the second defendant, I do not consider that it was of importance to the first defendant. Further, the case was not of wider importance to other prospective parties or the public generally as it did not give rise to any significant legal issues. The outcome of the case ultimately turned on the findings of fact. For the same reasons, I am also of the view that the case was not overly complex.
Further, the first defendant's costs occasioned by and thrown away as a result of the various amendments to the statement of claim are not costs which come within Item 19. They are the subject of separate costs orders made by the court on 29 September 2022 and 8 April 2024 and otherwise costs recoverable pursuant to O 66 r 3 of the RSC.
The first defendant's costs of inspecting the plaintiffs' discovered documents to ascertain whether they were consistent with what the plaintiffs pleaded in relation to the May 2008 Meeting, are costs that properly come within Item 8 of the relevant determination - an item which does not prescribe a maximum limit of hours.
In relation to Item 19 Preparation of Case, the 2022 Determination gives the following explanation for increasing the limit of hours from 120 to 130 hours:
In recognition of the increased complexity of litigation, the maximum allowance for preparation of case, previously known as getting up, under Item 19 has been increased from 120 to 130 hours. The increase is intended to reduce the need for successful parties to make an application for special costs orders.
Against the context of my findings that this case was not one of unusual difficulty, complexity or importance, I do not consider, in determining the first stage of the enquiry, that the maximum amounts allowable under each of Items 19 and 22 are inadequate. Accordingly, I find that there is not a fairly arguable case that, on taxation, costs may properly be allowed in an amount greater than the maximum amounts. Given I am of this view, I do not need to consider the second stage of the enquiry. However, I clearly have formed the view that it would not have been met in any event.
In these circumstances, the first defendant's application for a special costs orders in relation to Items 19 and 22 is dismissed.

Should the first defendant pay the plaintiffs' costs occasioned by the plaintiffs' notices to admit facts?

It is not in dispute between the parties that there should be no order as to costs in relation to the plaintiffs' notice to admit facts dated 28 March 2024 and the first defendant's notice to admit facts dated 3 April 2024.
The plaintiffs seek orders that the first defendant pay the plaintiffs' costs occasioned by the first defendant's failure to admit the facts the subject of the plaintiffs' notices to admit facts dated 6 March 2024, 13 March 2024 and 19 March 2024 (Notices) within the time stated in the Notices.
The first defendant seeks orders that there be no order as to costs in relation to the Notices.
Order 66 r 3(2) of the RSC provides:
If a party on whom a notice to admit facts is served under Order 30 rule 2, refuses or neglects to admit the facts within 7 days after the service on him of the notice or such longer time as may be allowed by the Court, the costs of proving the facts shall be paid by him, unless the Court otherwise orders.
The purpose of this rule is to encourage the parties to narrow the issues in dispute with the consequence being a reduction in the length of the trial and the amount of costs incurred by the parties. Although this is the prima facie position, the court has a discretion to order otherwise.[18] The court must consider whether there is any reason to displace the prima facie position provided for in O 66 r 3(2).[19]
[18] Tipperary Developments Pty Ltd v State of Western Australia [2009] WASCA 126 [292] (Tipperary).
[19] Tipperary [293].
I turn to consider each of the Notices.

Notice to admit dated 6 March 2024

This notice comprised the following:
(1)[1] to [6] sought the admission of email addresses of the first plaintiff, the second defendant and Scott Paisley and that certain emails were sent to the email addresses disclosed thereon;
(2)[7] sought the admission that a memorandum of transfer for brand earmarking was executed by Leslie and Audrey Wise;
(3)[8] sought the admission that from April 2008 until 2 June 2009 the partnership of Leslie and Audrey Wise received the income from the Tree Farming Agreement; and
(4)[9] sought the admission that Audrey received the income of the Tree Farming Agreement.
The first defendant says that the email addresses in [1] to [6] of the notice were not the subject of express findings of fact. The first defendant says that, in any event, the dispute concerning those emails was directed to whether the email said to be sent by the second defendant on 23 October 2011 was in fact sent (as the plaintiffs disputed that it was), whether a meeting occurred between the plaintiffs, the second defendant, Scott Paisley and Audrey on 23 October 2011, and whether the email and the meeting were consistent with Audrey not having made the promise (as asserted by the first defendant).
The first plaintiff and the second plaintiff gave evidence in relation to facts [1] to [6] at trial.[20] Their evidence in relation to these facts, save for in relation to fact [1], was unchallenged. The first defendant did not admit fact [1] during her evidence at trial.[21] I made findings of fact in relation to facts [1], [3], [4] and [5] in the Reasons.[22] The first defendant conceded fact [7] under cross examination[23] and I made an express finding of fact [7] in the Reasons.[24] Facts [8] and [9] were the subject of evidence given by Sandra Knight under cross examination[25] and counsel for the first defendant made a concession of these facts during the course of the trial.[26] Facts [8] and [9] were the subject of findings at [104] of the Reasons. None of these facts were admitted within the required 7 days.
[20] ts 211 - 213 and ts 447, 555 - 557, 615 respectively.
[21] ts 764 - 765.
[22] Reasons [213] and [216].
[23] ts 754.
[24] Reasons [143].
[25] ts 883.
[26] ts 504.
In the circumstances I have detailed, I consider that there is no reason to displace the prima facie position provided for in O 66 r 3(2) in relation to this notice. The first defendant must pay the plaintiffs' costs occasioned by her failure to admit the facts in this notice.

Notices to admit dated 13 March 2024 and 19 March 2024

The March 2024 notices relate to the Tree Farm Income.[27]
[27] As defined in [1] of the prayer for relief in the SOC: income from the Forest Products Commission and the Albany Plantation Forest company of Australia Pty Ltd.
On 3 April 2024, the first defendant filed a notice to admit facts which reflected the facts contained in the March 2024 notices. Although the facts were ultimately admitted, it was not within the required 7 days. I therefore, consider that there is no reason to displace the prima facie position provided for in O 66 r 3(2) in relation to these notices. The first defendant must pay the plaintiffs' costs occasioned by her failure to admit the facts in these notices.

Other matters

The first defendant also seeks orders that the plaintiffs pay the first defendant's costs of:
(1)pursuant to item 35 of the 2022 Determination, preparing the statement of evidence filed 19 April 2024;
(2)pursuant to item 36 of the 2022 Determination, the cost of the transcript; and
(3)pursuant to item 36 of the 2022 Determination, the reasonable costs of the preparation by, and attendance of, Sandra Knight at trial.
Item 35 of the 2022 Determination provides that allowances under Item 35 are only to be awarded as between a law practice and its client, or if costs are awarded on an indemnity basis and not between party and party unless the court otherwise orders.
The statement of evidence, to the extent that it was prepared on a day of the trial, is covered by the solicitor fee for attending trial as provided for by Item 22(e). In the event that it was prepared on a day other than a trial day, I consider that it comes within Item 22(g) - it being akin to written closing submissions. It is, therefore, not necessary to make any separate costs order in relation to the statement of evidence.
In relation to both the costs of the transcript and Sandra Knight, both are properly classified as disbursements coming within Item 36(b). It is a matter for the taxing officer to assess those costs upon production of vouchers. A separate costs order is not required.
Finally, I consider that each party should bear their own costs in relation to the application for costs following trial. Each party has been successful on their respective applications to some extent.

Conclusion and orders

For the above reasons, I make the following orders:
(1)The plaintiffs jointly and severally pay the first defendant's costs of the action, the liability of the second plaintiff to commence on 28 September 2022, to be assessed if not agreed.
(2)To the extent that the costs of the first defendant are not recovered from the plaintiffs, the first defendant's costs be paid out of the residuary estate of the deceased on a trustee basis.
(3)The first defendant pay the plaintiffs' costs occasioned by the failure of the first defendant to agree to the facts the subject of the plaintiffs' notices to admit facts dated 6 March 2024, 13 March 2024 and 19 March 2024 (Notices) within the time period stated in the Notices.
(4)There be no orders as to the parties' costs occasioned by the plaintiffs' notice to admit facts dated 28 March 2024 and the first defendant's notice to admit facts dated 3 April 2024.
(5)Each party bear their own costs in relation to the application for costs following trial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
25 SEPTEMBER 2024