BOLT -v- BOLT [2023] WASC 162 (22 May 2023)

CLAYPANS HOLDINGS PTY LTD AS TRUSTEE FOR THE CLAYPANS SUPERANNUATION FUND

SL & SL BOLT PTY LTD AS TRUSTEE FOR THE BOLT NO. 1 PROPERTY TRUST

SL & SL BOLT PTY LTD AS TRUSTEE FOR THE BOLT NO. 2 PROPERTY TRUST

PHILIP ROSS BOLT AND LYNETTE BARBARA BOLT AS TRUSTEES FOR THE PR & LB BOLT FAMILY TRUST

Costs - Plaintiffs' application for special costs of unsuccessful strike-out application by defendants - Whether costs allowable would be inadequate due to matter's complexity or importance - Whether special costs orders should be made - Turns on own facts

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA)

Legal Profession Uniform Law Application Act 2022 (WA), s 141

Atwell v Roberts [2013] WASCA 37 (S)

BCBC Singapore Pte Ltd v Pt Bayan Resources Tbk [No 5] [2023] WASC 116

Blatchford v Laine [2018] WASC 207

Bolt v Bolt [2023] WASC 162

Brown v Barber [2020] WASC 84

C H Leaman Investments Pty Ltd v Tuesday Enterprises Pty Ltd as trustee for The Steele Investment Trust [2022] WASC 447 (S)

City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [2022] WASC 384 (S)

City of Belmont v Saldanha [No 2] [2018] WASC 278

Eclipse Resources Pty Ltd v The State of Western Australia [No 2] [2015] WASC 137

Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S)

Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)

Pilbara Iron Company (Services) Pty Ltd v Chevron (TAPL) Pty Ltd [2020] WASC 296 (S)

Power and Water Corporation v Eni Australia B.V [2022] WASC 376 (S)

Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 2) [2017] WASCA 76 (S)

Uon Pty Ltd v Hoascar [2020] WASC 271 (S)

W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527

1. On 22 May 2023 I published my reasons for decision in relation to an application brought by the first to fourth defendants (Defendants) in which they sought orders that certain paragraphs of the statement of claim filed in this matter be struck out as an abuse of process. I concluded that the application should be dismissed: Bolt v Bolt [2023] WASC 162.
2. An advance copy of my reasons was provided to the parties to facilitate conferral about the orders that should be made to reflect those reasons. The parties managed to reach agreement about most of the orders, including orders that the Defendants pay the plaintiff's costs of the application to be taxed, if not agreed. However, the Defendants did not agree that a special costs order should be made pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) (Uniform Act). Specifically, the Defendants did not accept that the plaintiff's costs of the application should be assessed without regard to the maximum allowances fixed in item 10 of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (Costs Determination), which relates to work done in connection with proceedings in chambers.
3. Very shortly before I published my reasons for decision the plaintiff filed an outline of submissions in support of a contention that a special costs order should be made. The plaintiff also filed an affidavit sworn by Camilla D'Angelo Radenti, a solicitor employed by the firm that acts on behalf of the plaintiff.
4. Because the Defendants did not have sufficient opportunity to deal with the plaintiff's submissions or evidence, I made orders programming the filing of written submissions and affidavit evidence in relation to the question of whether a special costs order should be made. I also made an order that the plaintiff's application for costs be determined on the papers.
5. Subsequently, the Defendants filed an outline of submissions and an affidavit that was sworn by a partner of the firm which represents the Defendants in these proceedings, Alistair Ronald Fleming.
6. The plaintiff then filed an outline of submissions in response.
7. In my view, and for the following reasons, the plaintiff's application for a special costs order should be allowed.

1. 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.

(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.

1. 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) [2017] WASCA 76 (S).[38] The following is a summary of those principles, to the extent that they are relevant to the issues in this case.
2. Where a special costs order is sought, the court is required to consider two questions, namely:

(a) Are the maximum amounts allowable under the relevant items 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 amounts?
>
> (b) Does the inadequacy of the costs allowable under the costs determination arise because of the unusual difficulty, complexity, or importance of the matter?

3. If the answer to both of those questions is 'yes', then the court may do all or any of the things referred to in s 141(3)(a) - (d) of the Uniform Act. In this case the plaintiff submits that the court should exercise the power provided for in s 141(3)(c) by removing the limits that are fixed under item 10(a) of the Costs Determination, namely, costs relating to proceedings in chambers.
4. The issues that arise when a court is required to consider whether it has formed the opinion that is referred to in s 141(3) of the Uniform Act should be dealt with based on impression, rather than by conducting a detailed and precise evaluation. This means that it will not ordinarily be necessary for the court to determine what amount should be allowed on taxation, but only whether there is a fairly arguable case that a greater amount should be allowed than is otherwise allowable under the relevant costs determination. The mere fact that a party incurred greater costs than those that are allowable will not, of itself, suffice.
5. It does not necessarily follow that a party who is a beneficiary of an order made under s 141(3) of the Uniform Act will recover costs in an amount that exceeds the amount allowable under the relevant determination. This is because if a special costs order is made it will then be up to the taxing officer to 'consider the reasonableness of and necessity for the work undertaken, and to make a judgment about the remuneration reasonably required'.[39]
6. The word 'unusual' in s 141(3) only qualifies the word 'difficulty', and not the words 'complexity' or 'importance'.[40] However, the plaintiff does not assert that any inadequacy in the costs allowable under the Costs Determination arises because of the unusual difficulty of the matter. The plaintiff says that the amount of costs allowable under item 10(a) of the Costs Determination is inadequate because of the complexity or the importance of the matter.
7. In BCBC Singapore Pte Ltd v Pt Bayan Resources Tbk [No 5] [2023] WASC 116 [75] ‑ [79], Archer J explained the meaning of the word 'importance', in the context of applications for special costs orders, as follows:

Cases in which importance has been found include cases which involve the risk of significant professional damage, test cases, or cases which involve enormous sums of money.

Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq)[41] was a case in the first category, involving serious allegations against liquidators. In Heartlink, Martin CJ said that:

'[B]y reference to 'importance' in this context, the legislature is allowing the court to have regard to the question of whether the work done was appropriate to the significance of the issue 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 to the community generally. In this case, the issues raised were of considerable significance to the liquidators in the practice of their profession, and in respect of whom serious allegations were made.'

This passage was endorsed by the Court of Appeal in Sino Iron [No 2].[42]

In Blatchford v Laine,[43] Vaughan J[44] commented on the passage as follows:

'His Honour's formulation involves a qualitative evaluation as to the significance of the matter. It requires an assessment of the weight, seriousness and gravity of the issues and controversy before the court. Often the question of importance will be answered as a matter of impression informed by experience. Outside of those relatively rare cases involving matters of public importance - where 'importance' may well be obvious - the importance of the matter may be evident in the amount of the claim or the nature of the allegations that are being litigated.'

It is plain from these authorities, and the context of s 141 and the Legal Profession Uniform Law Application Act as a whole, that a matter will not be 'important' in the required sense simply because a party considers it to be so. If it were otherwise, the test of importance would probably be satisfied in every litigated dispute.

Further, I consider that a matter will not be 'important' in the required sense simply because the amount of money involved is large. It would depend on the circumstances.

1. It is important to properly identify 'the matter' in respect of which an 'amount of costs [is] allowable ... under a costs determination', for the purposes of s 141(3) of the Uniform Law. Proper identification of 'the matter' directs attention to the relevant 'costs determination', and to the specific costs allowable under that determination. Further, the court is required to make an assessment about whether the amount of costs allowable is inadequate because of the unusual difficulty, complexity or importance of the matter.
2. In this case 'the matter' is the Application and not the proceedings as a whole. It was the Application that was the dispute or controversy in respect of which the relevant legal services were provided, and in respect of which a special costs order is sought.[45]
3. In Atwell v Roberts [2013] WASCA 37 (S) [23], the Court of Appeal, when dealing with a special costs order made pursuant to the now repealed s 280(2) of the Legal Profession Act 2008 (WA), said that where a party makes an application for a special costs order the affidavit filed in support of the application 'should annex a draft bill of costs that specifies the amounts proposed to be claimed under each discrete sub-item and the total amount proposed to be claimed.' However, notwithstanding the fact that the applicant for the special costs order in that case had not annexed a draft bill of costs to the affidavit in support, the court was satisfied based on evidence of the number of hours worked and the maximum hourly rates permitted under the relevant scales that there was a fairly arguable case that the amounts allowable under the relevant determinations were inadequate.
4. It has also been observed that the failure to produce a draft bill of costs is not fatal to an application for a special costs order, and that in some cases no evidence is required at all.[46]

1. As I have already noted, the plaintiff relied on an affidavit sworn by Ms Radenti. According to that affidavit, Ms Radenti and Mr Donovan (who appeared as counsel at the hearing of the Application) spent a total of approximately 76 hours working on the Application. However, the affidavit does not provide any further details of the work that was done, or by whom it was done.
2. The Defendants relied on Mr Fleming's affidavit, which dealt with several topics. Mr Fleming set out a chronology of some of the communications that took place between the parties in the short time that led up to the publication of my reasons. He also annexed a copy of item 10 of the Costs Determination, noted that the plaintiff had not particularised the costs incurred, or provided a draft bill of costs, and provided an explanation for the number of lawyers who attended at the hearing of the Application on behalf of the Defendants.

1. The plaintiff submits that the maximum amount that is allowable under item 10(a) of the Costs Determination should be lifted because the Application was both complex and important.
2. In support of the submission that the Application was complex, the plaintiff relies on Ms Radenti's evidence about the number of hours that the plaintiff's solicitors spent preparing for and attending at the hearing of the Application. Although it is not clear from Ms Radenti's affidavit, I infer that the total time spent on the Application includes time that was spent preparing and considering the supplementary written submissions that were filed by the parties after the hearing.
3. The plaintiff also relies on the length of the written submissions that were filed by the parties, and on the number of legal practitioners who were present in court representing the Defendants at the hearing of the Application. He draws attention to the fact that in supplementary submissions that were filed after the hearing of the Application the Defendants raised a new issue, which then required written submissions in response from the plaintiff.
4. In relation to the issue of importance, the plaintiff submits that if the Application had been determined in the Defendant's favour, then that would have had a very significant effect on one of his two proprietary estoppel claims. In support of that submission the plaintiff refers to certain paragraphs of the Defendants' written submissions that were relied on in support of the strike out application, which the plaintiff submits expressly acknowledge the importance of the Application.

1. The Defendants submit that the plaintiff's application for a special costs order must fail because the evidence in support of the Application is inadequate. In that regard, the Defendants note that the plaintiff has not adduced any evidence of a draft bill of costs, and has not specified the total amount proposed to be claimed by the plaintiff. The Defendants further say that the plaintiff has not provided sufficient detail in relation to the circumstances in which costs were incurred.
2. The Defendants also submit that beyond bare assertions that the Application was complex and of importance, the plaintiff does not explain why the court should reach those conclusions, and say that it is insufficient to simply refer to the length of the written submissions filed by the parties.
3. By reference to several 'characteristics' of the Application, the Defendants submit that there is limited evidence that would support a special cost order being made. Amongst other matters, the Defendants point to the fact that the Application was only concerned with nine paragraphs of the statement of claim and four documents, neither party relied on any evidence, and the resolution of the Application depended upon the application of settled principles relating to without prejudice privilege. The Defendants also say that the written submissions filed by the parties were not lengthy, noting that the plaintiff's written submissions were relatively short, with the longest stretching to only 11 pages.
4. The Defendants submit that considering the hearing took three hours, and not a full day, the two-day maximum allowed for in item 10(a) of the Costs Determination provides adequate scope for the taxation of the plaintiff's costs for preparing the Application.
5. The Defendants do accept that supplementary written submissions had to be filed after the hearing. However, it is submitted that this is not unusual, and that it does not of itself mean that a special costs order should be made. In the alternative, the Defendants submit that if the court decides to make a special costs order, then it should only allow a 'small increase' above the maximum amount specified in item 10(a) of the Costs Determination to allow for those further submissions.

Is it fairly arguable that costs may be allowed in an amount that exceeds the maximum amounts allowed under item 10(a) of the Costs Determination?

1. The proper approach, on a taxation, to the determination of allowances for items set out in a costs determination was stated by Asprey J in W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527, 534:[47]

... 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 such 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 statutes and rules, the practice of the court, and the usages of the legal profession appertaining to such a case.

1. Accordingly, I am required to reach a view about whether it is fairly arguable that a taxing officer may find that the costs incurred by the plaintiff in doing work that was necessary and reasonable to prepare for and appear at the hearing of the Application may be allowed in an amount greater than the maximum amounts allowed in item 10(a) of the Costs Determination.
2. The rates set out in item 10(a) are the maximum daily rates[48] that are applicable for work done by counsel in relation to proceedings in chambers. While the maximum rates are expressed as global figures,[49] they relate to work done both in preparation for, and while appearing at, a hearing in chambers. The rates are based on a hearing that does not exceed one day, and on the assumption that the time spent in preparing for a hearing in chambers will not exceed two days.
3. The Costs Determination does not expressly indicate what type of work constitutes 'preparation', for the purposes of item 10(a). However, the commentary in Civil Procedure: Western Australia, vol 1 [66.11.9][50] suggests that the allowance relevantly covers the preparation of written submissions,[51] preparing for a hearing in chambers, and the appearance in chambers to argue the Application.
4. Given that orders were made that the parties were to file supplementary written submissions to deal with issues that arose during the hearing of the Application, it seems to me that any costs incurred in doing that work would also fall to be considered by reference to item 10(a), on the basis they formed part of the preparation for, or constituted a part of, the appearance in chambers.
5. Ms Radenti's evidence is that the plaintiff's solicitors have spent approximately 76 hours working on the Application. However, that evidence is expressed at a very high level of generality. Based on that evidence alone, I am unable to reach any meaningful impression about whether it is fairly arguable that a taxing officer might conclude that the costs relating to work that was necessary and reasonable may be allowed in an amount that exceeds the maximum amounts allowed under item 10(a) of the Costs Determination.
6. Nevertheless, based on my own knowledge of the case and its circumstances, and informed by Ms Radenti's evidence, I am of the view that it is fairly arguable that costs may be allowed in an amount that exceeds the maximum amounts allowed under the Costs Determination.
7. Had the Defendants' Application succeeded then this would almost certainly have spelled the end of the plaintiff's second proprietary estoppel claim. Although this observation is relevant to the second question that I am required to answer in the context of the plaintiff's application for special costs, it also informs the question of whether it is arguable that the costs associated with the reasonable and necessary work done by the plaintiff's legal advisers will exceed the amount allowed under the Costs Determination.
8. It is difficult to conclude that the plaintiff's own written submissions in opposition to the Application required a significant amount of time to prepare, having regard to their length and contents. However, in the light of the above background, I accept that the plaintiff's legal advisers are likely to have had to spend a significant amount of time considering the Defendants' detailed written submissions (both in chief and in reply), including the numerous authorities to which the Defendants referred, in order to prepare written submissions in response, and to prepare for making oral submissions at the hearing of the Application.
9. It is true that the hearing did not take a full day. However, that does not necessarily mean that the plaintiff was not required to carry out work in advance of the hearing that may have reasonably exceeded the two-day maximum provided for in item 10(a) of the Costs Determination. Written submissions can result in a significant reduction in the time required for a hearing.
10. As I have already noted, because issues were raised at the hearing of the Application, orders were made that required the preparation of further written submissions. Initially, orders were made that the plaintiff was to file further written submissions, and that the Defendants were to file submissions in response. However, I subsequently made orders after the Defendants had filed their submissions, which allowed the plaintiff to file further supplementary submissions to deal with an additional issue raised by the Defendants.
11. Ultimately, when I look at the documents that have been filed, and what occurred during and after the hearing of the Application, and when I then take into account Ms Radenti's evidence about the time that has been spent by the plaintiff's legal advisers dealing with the Application, I am of the opinion that it is fairly arguable that costs may be allowed in an amount that exceeds the maximum amount allowed under item 10(a) of the Costs Determination.
12. I will now turn to deal with the second question that arises in the context of an application for a special costs order.

Does the inadequacy of the costs allowable under the costs determination arise because of the unusual difficulty, complexity, or importance of the matter?

1. In my view, the amount of costs allowable under item 10(a) of the Costs Determination is not inadequate because of the complexity of the Application. The pleadings that have been filed in this case show that the plaintiff's claim is likely to be both factually and legally complex. However, the relevant focus for the purposes of the plaintiff's application for a special costs order is 'the matter', namely, the Application.
2. It can be seen from my reasons for dismissing the Application that it was not necessary for me to grapple in any substantial way with the factual or legal issues that are likely to arise at trial. Further, neither party adduced any evidence at the hearing that was relevant to the issues raised by the Application. The Defendants only relied on some limited evidence for the purpose of justifying the delay in bringing the Application.
3. The Application proceeded based on the pleadings, and by reference to five relatively uncomplicated documents. The essential issue for me to decide was whether certain communications between the parties were conducted on a without prejudice basis by reference to the question of whether litigation was contemplated, or might reasonably have been contemplated, at the time of those communications. In short, the Application was not complex.
4. However, I am of the opinion that the inadequacy of the amount of costs allowable under item 10(a) of the Costs Determination, in the relevant sense, arises because of the importance of the Application.
5. The Application was important because of the significance of the issues to the parties. In reaching that conclusion I am conscious that a matter will not be 'important', for the purposes of s 141(3) of the Uniform Act, simply because a party considers it to be.
6. At paragraph 59 of the statement of claim the plaintiff pleads that the first and second defendants acted to induce, encourage and acquiesce in what is referred to in the pleadings as the 2016 Assumptions. By that paragraph the plaintiff pleads, in support of his second proprietary estoppel claim, both an essential element of proprietary estoppel by encouragement and of proprietary estoppel by acquiescence.[52] The plaintiff's case is that the first and second defendants 'acted to induce, encourage and acquiesce' by acting as pleaded in paragraphs 60 - 63, 64 ‑ 69, 71, and 73 - 78 of the statement of claim. Therefore, these paragraphs form a critical part of the plaintiff's second proprietary estoppel claim.
7. If I had allowed the Application, in which the Defendants sought orders that paragraphs 65, 66, and 68 - 72 be struck out, it is obvious that it would have had very significant, if not fatal, consequences for the plaintiff's second proprietary estoppel claim. There would also be no question of granting the plaintiff leave to re-plead.
8. The Defendants also sought to strike out paragraphs 83 and 84 of the statement of claim. The facts pleaded in those paragraphs form an important part of the plaintiff's case because they are relied on, in part, to establish that the Defendants sought to resile from the assumptions that underpin both of the plaintiff's proprietary estoppel claims. If those paragraphs had been struck out, that would have had serious consequences for both of the plaintiff's proprietary estoppel claims.
9. I accept the plaintiff's submission that the Application's importance is, to some extent, confirmed by the Defendants' submissions that were relied on in support of the Application. Paragraphs 5 ‑ 7 of the Defendants' reply submissions were in the following terms:
   1. The plaintiff makes the uncontroversial point that interlocutory disputes are discouraged in modern litigation because of the costs, the time, and the fact that interlocutory applications are usually not significant in the context of the whole proceeding.
   2. However, resolving whether the plaintiff can rely on and disclose the Communications which the defendants say attract and retain without prejudice privileged is not a minor or peripheral issue. To the contrary, and as the plaintiff has admitted, the Communications underpin his 2016 Assumptions, being one of the two estoppel claims pleaded by the plaintiff.
   3. This issue is ripe for determination now, as the outcome will have a significant impact on the substance of the pleadings of both parties, [and] any evidence required to meet the case put by the plaintiff. In particular:

(a) the defendants have pleaded their defence in such a way as not to waive privilege over the Communications (which also means they have not provided an alternate defence to the relevant paragraphs in the Statement of Claim). If the Court does not accept the defendants claim of privilege, then it will be necessary for the defendants to amend their defence and consider any further evidence required; and
>
> (b) if this evidence is inadmissible, then it will likely assist the parties with early settlement discussions, particularly when coupled with the limitation issues related to the 2006 Assumptions; and
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> (c) otherwise, it is likely to reduce the overall time and costs of the main trial. (citations omitted and emphasis added)

10. Although Ms Radenti's evidence is lacking in detail, it does show that the plaintiff's legal representatives spent a considerable amount of time working on the Application, which far exceeded the 30 hours that are allowed for under item 10(a) of the Costs Determination. As Allanson J said in Power and Water Corporation v Eni Australia B.V [2022] WASC 376 (S) [19], the court should not fall into the trap of making an estimate of the time that should have been spent by the plaintiff dealing with the Application when the court does not have all of the information that would be necessary to make such a judgment. It will be for the taxing officer to decide whether, and to what extent, that work was necessary and reasonable.
11. In the light of the potential significant consequences of the Application and having regard to what occurred at the hearing of the Application, and to the documents that were filed by the parties (particularly the written submissions), my overall impression is that it is arguable that the plaintiff's lawyers carried out the work referred to by Ms Radenti because of the importance of the Application.
12. Accordingly, I am of the view that it is fairly arguable that the bill that will be presented to a taxing officer in relation to the Application may properly tax at an amount that is greater than the maximum allowable under item 10(a) of the Costs Determination, and that this is because of the importance of the Application.
13. On that basis I am prepared to make a special costs order in relation to the Application pursuant to s 141(3) of the Uniform Act.
14. The Defendants submit that if I form the opinion required by s 141(3) of the Uniform Act then instead of removing the limits on costs fixed by item 10(a) of the Costs Determination, I only should fix slightly higher limits pursuant to s 141(3)(b) to make allowance for the fact that further written submissions were required to be filed.
15. While there is merit in the Defendant's submission, I am of the view that the appropriate order is to remove the limits on costs fixed in the Costs Determination pursuant to s 141(3)(c) of the Uniform Act. Detailed consideration about how, and to what extent, the work that was done by the plaintiff's legal advisers in the course of preparing for and appearing at the hearing of the Application should be assessed in accordance with item 10(a) of the Costs Determination is best left to the taxing officer to decide. As I have already said, a special costs order does not entitle the plaintiff to automatically recover his costs in an amount that exceeds the amount allowable under item 10(a). It will up to the taxing officer to consider the reasonableness of and necessity for the work undertaken, and to use their expertise to make a judgment about the remuneration reasonably required.
16. I would make the following orders:

(1) The first to fourth defendants are to forthwith pay the plaintiff's costs of the Application, to be taxed if not agreed.

(2) Pursuant to s 141 (3)(c) of the Legal Profession Uniform Law Application Act 2022 (WA), the limits on costs that are fixed by item 10(a) of the Legal Profession (Supreme and District Courts) (Contentious Business) Costs Determination 2022 are removed, and the plaintiff's costs of the Application are to be taxed without regard to those limits.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Rules of the Supreme Court 1971 (WA) O 20 r 19(3).

[2] Both claims of proprietary estoppel are based on estoppel by encouragement and on estoppel by acquiescence; as to which, see Brown v Barber [2020] WASC 84 [212] - [234].

[6] See also English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55].

[7] Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(d).

[8] First, Second, Third and Fourth Defendants' Submissions in Support of their Strike Out Application dated 14 November 2022 [18].

[9] See also, Woodings as liquidator of The Bell Group Ltd and the Bell Group Finance Pty Ltd v WA Glendinning & Associates Pty Ltd [2019] WASC 54 [121] ‑ [122].

[10] Field v Commissioner for Railways for New South Wales [1957] HCA 92; (1957) 99 CLR 285, 291 - 292 (Dixon CJ, Webb, Kitto and Taylor JJ).

[11] Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208 (S) [15].

[12] Samnakay v Schofield [2013] WASCA 138 [44]. See also, Oceanbulk Shipping & Trading SA v TMT Asia Limited [2010] UKSC 44; [2011] 1 AC 662.

[13] Samnakay [45] (citations omitted).

[14] First, Second, Third and Fourth Defendants' Submissions in Support of their Strike Out Application dated 14 November 2022 [23] - [26]; Plaintiff's Submissions and List of Authorities in Response to First to Fourth Defendants' Strike Out Application dated 12 December 2022 [13] - [16]; First, Second, Third and Fourth Defendants' Reply Submissions in Support of their Strike Out Application dated 23 January 2023 [18] - [23].

[15] See also, Verge v Devere Holdings Pty Ltd [2009] FCA 832; (2009) 258 ALR 464.

[16] See, for example, Alan Ramsay Sales & Marketing Ltd v Typhoo Tea Ltd [2016] EWHC 486; [2016] 4 WLR 59 [22]; Re QRD Development Company No. 3 Designated Activity Company [2022] IEHC 498 [26].

[17] Morgan v Whanganui College Board of Trustees [2014] NZCA 340; [2014] 3 NZLR 713 [13].

[18] Passmore, Privilege, 4th ed (2020) 1066 - 1069; Thanki, The Law of Privilege, 3rd ed (2018) 135, 315; Desiatnik, Without Prejudice Privilege in Australia, 1st ed (2010) 19, 22 - 23.

[20] See also, Unilever Plc v The Procter & Gamble Co [1999] EWCA Civ 3027; [2000] 1 WLR 2436, 2442 (Walker J).

[22] CMA Assets Pty Ltd Formerly Known as CMA Contracting Pty Ltd v John Holland Pty Ltd [No 4] [2013] WASC 77 [8] - [12].

[27] First, Second, Third and Fourth Defendants' Submissions in Support of their Strike Out Application dated 14 November 2022 [30].

[28] First, Second, Third and Fourth Defendants' Submissions in Support of their Strike Out Application dated 14 November 2022 [32].

[29] The farming enterprise is described in recital A as a farming enterprise in Corrigin, known as 'Claypans Farm'.

[30] Or in January 2018, which is the date recorded within the Amended 2017 Heads of Agreement pleaded at [71] and [72] of the statement of claim.

[34] South Shropshire District Council v Amos [1987] 1 All ER 340 [344]. See also Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (No 2) [2011] FCA 276; (2011) 193 FCR 479 [39].

[37] Plaintiff's Submissions and List of Authorities in Response to First to Fourth Defendants' Strike Out Application Filed on 29 September 2022 dated 12 December 2022 [26].

[38] The Court of Appeal was dealing with the now repealed s 280 of the Legal Profession Act 2008 (WA). However, as that section is in identical terms to s 141 of the Uniform Act, it has been accepted that the statements made in that case continue to apply: see, for example, City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [2022] WASC 384 (S) [25] and C H Leaman Investments Pty Ltd v Tuesday Enterprises Pty Ltd as trustee for The Steele Investment Trust [2022] WASC 447 (S) [9].

[39] Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 2) [11].

[40] Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 2) [15].

[41] Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S).

[42] Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 2) [15].

[43] Blatchford v Laine [2018] WASC 207 [88].

[45] Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [7]; Eclipse Resources Pty Ltd v The State of Western Australia [No 2] [2015] WASC 137 [36]; Uon Pty Ltd v Hoascar [2020] WASC 271 (S) [17] ‑ [19].

[46] Pilbara Iron Company (Services) Pty Ltd v Chevron (TAPL) Pty Ltd [2020] WASC 296 (S) [15].

[47] That passage was subsequently referred to by Vaughan J, as he then was, in City of Belmont v Saldanha [No 2] [2018] WASC 278 [66], and is reproduced in Judge M Gething et al, Civil Procedure: Western Australia [66.11.2].

[48] The daily rates are based on a 10 hour day, and are not intended to be supplemented by any additional hourly charges: cl 16 of the Costs Determination.

[49] One amount relates to senior counsel, while the other amount relates to junior counsel and other practitioners who appear in court who are not barristers.

[50] Judge M Gething et al, Civil Procedure: Western Australia.

[51] This conclusion is supported by what is set out in cl 16(c) of the Costs Determination, which refers to the daily rates in Table A, and provides that those rates include the preparation of written submissions.

[52] Brown v Barber [2020] WASC 84 [212] - [213].