On 21 July 2025, this court delivered its reasons in Singh v Sun Bred Power Pty Ltd (In Liquidation)[1] determining the application of Thomas Birch and Jeremy Joseph as liquidators of the defendant (Liquidators) for a permanent stay of the claim of the plaintiff (Dr Singh) in their favour.
At the time of publishing those reasons, the court directed that the parties either file an agreed minute of proposed orders or, alternatively, competing minutes of proposed orders (together with submissions) for the determination of the appropriate costs orders on the papers.
The parties were unable to agree.
The Liquidators seek an order that Dr Singh pay their costs of the stay application fixed in the sum of $15,000.
Dr Singh, on the other hand, requests that the court make an order that the Liquidators pay him the sum of $234,131.97, being the amount he has calculated is owed to him as payment of his claim after the Liquidators' costs are deducted. That request is plainly misconceived.
Dr Singh otherwise opposes any order that he pay the Liquidators' costs. The only reason he proffers is that such an order would amount to an 'illegal enrichment' by the Liquidators. That notion is also misconceived.
The general rule when the court exercises its discretion is that the successful party recovers its costs.[2]
What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case.[3]
In this application, there can be no doubt that the Liquidators were the successful party. A permanent stay of Dr Singh's action was granted as sought.
While the court rejected the Liquidators' jurisdictional argument with respect to s 90-15 of the Insolvency Practice Schedule, that argument was for all practical purposes based on the same evidence upon which the Liquidators had also relied in support of a stay being granted pursuant to the court's inherent jurisdiction; being the argument which the court ultimately accepted.
Accordingly, and in circumstances where the written submissions based on the Liquidators' s 90-15 argument were not overly extensive, I do not consider the Liquidators' reliance on that rejected argument would have drastically increased the costs of the application. To whatever extent there may have been increased costs, I consider that aspects of Dr Singh's conduct in this matter in any event weigh against any exercise of the costs discretion in a way which would operate to deprive the Liquidators of any portion of their costs.
In this regard, as the Liquidators correctly note, Dr Singh not only abandoned a large portion of his claim at a late stage, but his affidavit material and submissions also included irrelevant material. I infer both matters would have led to the Liquidators having incurred more costs than they might otherwise have done.
The general rule, where an order for costs is to be made against a party in interlocutory proceedings, is that the costs will be fixed and ordered to be paid forthwith or by a particular date.[4]
The court has the power to fix costs under O 66 r 51(1) of the Rules of the Supreme Court 1971 (WA). That power is ordinarily exercised having regard to the principles in Brookvista Pty Ltd v Meloni.[5]
In that case, Newnes JA (Buss JA agreeing) recognised that:
[2]
The purpose of fixing costs is to avoid the expense and delay involved in taxation. Consistent with that objective, in fixing the sum the court will not subject the costs to the detailed scrutiny often applied in taxation of costs. It is appropriate instead to apply a 'much broader brush' than would be applied on a taxation.
But in fixing the amount of the costs, the approach of the court should be 'logical, fair and reasonable'. And the power to award a fixed sum should only be exercised when the court considers that it can determine the amount of the costs fairly. That means the court must have available to it sufficient material that it is confident it can arrive at an appropriate sum. (citations omitted)
[3]
Here, there are no compelling reasons to depart from the general rule. It is appropriate for the court to fix costs in a logical, fair and reasonable amount to avoid further expense to the parties.
In its written submissions, the Liquidators provided a schedule setting out both their disbursements and the cost of the work done by junior and senior practitioners in relation to the stay application.
The Liquidators claim that the work completed on the stay application when assessed against the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 is $17,556.
This amount reflects the maximum scale rate fixed cost maximum of $15,840 allowable for proceedings in chambers,[6] together with an additional 3 hours of work assessed at the senior practitioner rate for all necessary work done to obtain final orders.
I note that stay application was first filed in March 2024 and a portion of the work completed by the practitioners was finalised whilst the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 still had effect.
At that time, the maximum fixed scale rate cost for proceedings in chambers was slightly lower than it is now being $14,190.
Having said the above, and considering both the complexity of the stay application and the maximum allowable scale rates for proceedings in chambers, I am satisfied that the Liquidators' estimates are logical, fair and eminently reasonable.
For the foregoing reasons, I will grant the order sought by the Liquidators and order that Dr Singh pay their costs of the stay application fixed in the amount of $15,000.
[4]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[5] Brookvista Pty Ltd v Meloni [2009] WASCA 180 [26]-[27]; Fitzroy River Ltd Liability Co v Tucker as Joint and Several Administrator of Yeeda Pastoral Co Pty Ltd (Subject to Deed of Company Arrangement) [2025] WASCA 118 (S) [4].
[10]
[6] Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024, item 10(a).
Parties
Applicant/Plaintiff:
1. On 21 July 2025, this court delivered its reasons in Singh