PRIMERO GROUP LIMITED -v- COBURN RESOURCES PTY LTD [2025] WASC 69 (7 March 2025)

1. The relevant item of the 2024 Scale which applies to the Application is Item 10 of Table B:

1. Mr Wang, a partner at King & Wood Mallesons (KWM) in the Dispute Resolution Group with approximately 19 years' experience in commercial litigation[5] deposes that:

(1) the costs incurred by the defendant on a solicitor / client basis in defending the Application are approximately $256,143.91 excluding GST;[6]

(2) the legal work undertaken in relation to the defendant's defence of the Application involved briefing junior and senior counsel; oral and written correspondence in relation to the programming of the Application, the undertakings provided by the defendant not to have recourse to the security and orders following judgment; reviewing affidavits filed by the plaintiff (1083 pages including annexures); preparing the Childs Affidavit (661 pages including annexures); reviewing submissions; preparation for and attendance at the hearing on 20 February 2025 and the delivery of judgment on 7 March 2025; preparing supplementary submissions in relation to construction of cl 5.2(c) of the Contract at the request of the court and reviewing the plaintiff's supplementary submissions; considering the Reasons and the orders to give effect to the Reasons;[7]

(3) in defending the Application, Mr Wang and the solicitors at KWM worked the following number of hours at the following rates:[8]

(4) the defendant engaged senior and junior counsel on the Application - senior counsel worked 28.33 hours at a rate of $1,363.64 per hour and junior counsel worked for 61.1 hours at a rate of $380 per hour; and

(5) the involvement of himself, each of the solicitors and senior and junior counsel and the number of hours spent by each of them at their respective hourly rates was reasonable given the complexity of the issues, the urgency of the Application and the substantive implications for either party depending on the result of the Application.[9]

1. The defendant submits that the limits provided for in Item 10 of the 2024 Scale are inadequate because the defendant's costs would be assessed at taxation at a higher amount because the Application was unusually difficult, complex and important. The defendant submits that:

(1) both parties sought competing declarations as to the proper construction of cl 5.2(b) of the Contract and the court granted final declaratory relief as to its meaning - therefore, the determination of the Application was dispositive of the entire proceedings;

(2) the central issue in the Application involved a complex question of contractual construction which required both parties to make detailed written and oral submissions as to the meaning of not only cl 5.2(b) of the Contract, but also the various indicia elsewhere in the Contract to aid in the exercise of construction;

(3) the Application was programmed and determined on an expedited basis;

(4) the issue of whether recourse could be had to the Security was a matter of particular importance to the parties given the financial position of the defendant, the asserted reputational harm to the plaintiff and the fact that both parties engaged large commercial law firms and retained senior and junior counsel to undertake the work; and

(5) the large volume of affidavit material filed demonstrates the complexity of the Application.

1. The plaintiff says that the defendant, in the absence of providing a draft itemised bill of costs, has not demonstrated that it has a fairly arguable case that its costs will be assessed on taxation at an amount greater than the amount allowable in Item 10 of the 2024 Scale. The defendant says that the scope of the proceedings was confined to the proper construction of the Contract, the parties conferred to narrow the issues in dispute and to preserve their positions prior to the hearing of the Application and the hearing was only two hours long. The defendant says that these features of the Application mean that Item 10 provides for a reasonable allowance for costs of Application.
2. The plaintiff submits that, even if the defendant has a fairly arguable case that its costs will be assessed on taxation at an amount greater than the amount allowable in Item 10 of the 2024 Scale, the inadequacy of the 2024 Scale does not arise because of the unusual difficulty, complexity or importance of the Application.
3. The plaintiff submits that the Application was not of unusual difficulty, complexity or importance because:

(1) while the Reasons had the effect of disposing of the entire proceedings, the hearing was limited to dealing with the Application;

(2) the urgency of the Application was assuaged by the defendant providing an undertaking that it would not have recourse to the Security pending the hearing of the Application;

(3) there is no usual difficulty in determining the proper construction of cl 5.2(b) of the Contract - contractual construction is within the usual run of civil cases in the Supreme Court;

(4) the Application did not raise any complex questions of law - the construction of cl 5.2(b) of the Contract was decided on agreed legal principles and the facts of this case;

(5) the parties had significantly narrowed the scope of the dispute by the time of the hearing. As a result of the defendant's concessions, the court was not required to determine the Defect Rectification Claim or the Consequential Loss Claim;

(6) the affidavits, while voluminous, were not unusual for an Application of this type. The affidavits contained annexures which comprised of the Contract, correspondence, ASX announcements and financial reports. Many of the annexures were not relevant to the question of construction. The plaintiff submits that that these annexures were not new to the parties and did not add to the complexity of the case or the level of work required; and

(7) the deteriorating financial position of the defendant, while important to the parties, was not of significance to the issues in dispute, nor to any prospective party or the wider community.

1. The fact that defendant did not provide a draft bill of costs in support of its contention that the costs that are properly allowable upon the Application are greater than the amounts provided for in Item 10 is not fatal to their application for a special costs order. The court may infer, from its own knowledge of the Application, that the amount allowable under Item 10 of the 2024 Scale may be inadequate.[10]
2. The actual costs incurred by the defendant in defending the Application are over six times the limit in Item 10. The fact that the costs incurred by the defendant are greater than the maximum allowance under Item 10 of the 2024 Scale is not, in and of itself, sufficient to establish a fairly arguable case that the bill of costs may properly tax at an amount which is greater than the limit in Item 10. The costs incurred must be assessed in the context of the difficulty, complexity and importance of the matter.
3. In my view, the issue of the proper contractual construction of cl 5.2(b) of the Contract was complex as a matter of law. The determination of the proper construction of that clause involved consideration of the terms of the Contract as a whole. The terms of the Contract were unique to this case and several other clauses of the Contract had a bearing upon the proper construction of cl 5.2(b). The affidavits filed in support of and in opposition to the Application were voluminous. Each party filed detailed written submissions. Each party was represented by both senior and junior counsel at the hearing. I required each party to file supplementary submissions to address the issue of the proper construction of cl 5.2(c) of the Contract. The combination of these factors is demonstrative of the complexity of the Application.
4. The Application was also of unusual difficulty, compared to the ordinary run of civil cases, because of the bespoke nature and the number of clauses in the Contract that had a bearing upon the proper construction of cl 5.2(b) of the Contract.
5. Finally, the proper construction of cl 5.2(b) of the Contract was of substantial importance to the parties in that the determination of the Application had the effect of finally resolving the proceedings. The result of the Application also had significant consequences for the parties - if the Application was successful, it would prevent the defendant from having recourse to the Security until the underlying contractual dispute between the parties was resolved.
6. In all of these circumstances, I am satisfied, as a matter of overall impression, that the defendant has a fairly arguable case that the bill of costs presented to the taxing officer may properly tax at an amount which is greater than the limit which would be imposed by the 2024 Scale because of the 'unusual difficulty, complexity or importance of the matter'.

1. For the reasons outlined above, I consider it appropriate to make an order pursuant to s 141(3) of the Uniform Act that the defendant's costs of the Application be assessed without regard to the limits in Item 10 of Table B of the 2024 Scale.
2. I note that the effect of a special costs order removing the 2024 Scale limit for Item 10 does no more than that - it is ultimately a matter for the taxing officer as to what the reasonable allowance is on a taxation.
3. I propose to make the following orders:

(1) Pursuant to section 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA), the defendant's costs of the plaintiff's application dated 17 December 2024 be assessed without regard to any of the limits in Item 10 of Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (WA) (Special Costs Order).

(2) the plaintiff's pay the defendant's costs of the application for the Special Costs Order to be taxed if not agreed.

1. In the event that the parties wish to be heard on the form of the orders, they are to notify the court within 7 days of the date of these reasons.

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

[1] Primero Group Limited v Coburn Resources Pty Ltd [2025] WASC 69.

[2] Sino Iron Pty ltd v Minerology [No 2] [2017] WASCA 76 (S) [14].

[3] Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 (S) [9] and authorities cited therein.

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

[10] 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].