FITZROY RIVER LIMITED LIABILITY COMPANY -v- RICHARD SCOTT TUCKER as joint... [2025] WASCA 118 | Case summary

Judgment (5 paragraphs)

[1]

On 28 July 2025, we dismissed this appeal for reasons to be published later. We also reserved the question of the costs of the appeal to be determined on the court publishing its reasons for dismissing the appeal. The court's reasons for dismissing the appeal were published on 5 August 2025. On publishing those reasons, we gave directions for the determination of the appropriate costs orders on the papers.
On 13 August 2025, the appellant and the first, second and third respondents filed a consent notice for an order that the appellant pay 85% of the first, second and third respondents' costs of the appeal, to be assessed if not agreed. Given the outcome of the appeal, and the agreement between those parties as to the terms of the appropriate costs order, it is appropriate to make that order.
It is common ground between the appellant and the fourth respondent that the appellant should pay the fourth respondent's costs of the appeal. The fourth respondent proposes that those costs be fixed in the amount of $100,000. The appellant proposes that it be ordered to pay the fourth respondent's costs to be assessed if not agreed.
Both parties accept that the court has the power to fix costs under O 66 r 51(1) of the Rules of the Supreme Court 1971 (WA), and that the power is ordinarily exercised having regard to the principles discussed in Brookvista Pty Ltd v Meloni.[1] In that case, Newnes JA (Buss JA agreeing) recognised that:

[2]

In the present case, the fourth respondent seeks payment of its costs fixed in a significant sum. While it has adduced evidence of the amounts it has paid to its legal representatives, the amounts claimed are not identified by reference to the classifications in item 25 of the Legal Profession (Supreme and District Courts) (Contentious Business) Costs Determination 2024 (WA). Most of the amount paid was to the fourth respondent's solicitors (said to be $107,991.75 excluding GST) rather than counsel (whose invoices total $42,998.70 excluding GST). While the supporting affidavit discloses that the rates charged by counsel for the fourth respondent were below the scale rate, it does not disclose the rates charged by solicitors. The attached invoices issued by the fourth respondent's solicitors are not itemised. The affidavit does not indicate with any particularity what tasks those solicitors undertook, or what time was spent performing those tasks.
The affidavit expresses a view as to the amount at which the solicitors' costs would be assessed based on the deponent's 'general experience' that, following a taxation, 'ordinarily approximately 65% ‑ 75%' of costs paid to the fourth respondent's solicitors will be 'ordered on a party-party basis'. However, that general experience does not provide an adequate basis for this court to assess the reasonableness of the solicitors' costs incurred in this particular case. That is all the more so where the deponent does not depose to having undertaken any taxations in the Supreme Court of Western Australia. The deponent only refers to experience in having undertaken costs assessment and taxations in other Australian courts.
We are not satisfied, particularly in relation to the costs of the solicitors, that there is sufficient material before the court to enable it to fairly and confidently determine an appropriate sum at which to fix the fourth respondent's costs of the appeal.
For these reasons, the costs orders will be:
1. The appellant pay 85% of the first, second and third respondents' costs of the appeal to be assessed if not agreed.
2. The appellant pay the fourth respondent's costs of the appeal to be assessed if not agreed.

FITZROY RIVER LIMITED LIABILITY COMPANY -v- RICHARD SCOTT TUCKER as joint and several administrator of YEEDA PASTORAL COMPANY PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) [2025] WASCA 118 (5 August 2025)

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Judgment (5 paragraphs)