ANZ Banking Group (NZ) Ltd v Gibson [1986] 1 NZLR 556

Australian Coal and Shale Employee's Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Citibank Savings Ltd v Pirrotta & Ors, unreported; FCt Ct of SA; BC 9801002

Mossensons v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997

Ozois v Trotman, unreported; SCt of WA; Library No 950412; 9 August 1995

Pryles & Defteros v Green [1999] WASC 34

Sandtara Pty Ltd v Australian European Finance Corporation Ltd (1990) 20 NSWLR 82

1 WHEELER J: This is an application for review of the decision of a taxing officer. On 17 August 1998, Master Ng gave judgment in favour of the plaintiffs on a chamber summons pursuant to O 14 of the Rules of the Supreme Court in respect of a claim arising out of the mortgage by the defendant, as trustee of the C W Mortimore Family Trust, of land owned by him as trustee to Bankwest, and the mortgage by the plaintiffs of land owned by them to Bankwest as collateral security, as a result of which Bankwest, in due course, assigned the trust mortgage to the plaintiffs.

2 The terms of the mortgage provided for the mortgagor to pay the mortgagee's costs "including in each case without limitation legal costs and expenses on a solicitor and own client basis". The chamber summons included a prayer that "the defendant pay the plaintiffs' costs of the action on an indemnity basis". The order as to costs made by the Master read:

"The defendant pay the plaintiffs' costs of the action, including all reserved costs, except costs of 1 May 1998, to be taxed, with the proviso that the taxing officer shall not be bound by the maximum permissible under the scale if satisfied that the plaintiffs' reasonable costs exceed the scale."

3 The plaintiffs' submissions on their review of taxation assert that there are three tiers of taxation, based upon increasing degrees of generosity, namely: party/party costs; solicitor/client costs; and indemnity costs. It is asserted that the taxing officer proceeded on the basis of party/party costs, when the word "reasonable" and the blanket removal of scale restrictions suggests that the order intended more than taxation on a party/party basis. Rather, as I understand it, it was suggested that the order was properly to be interpreted as a "solicitor/client" order. Further, it was submitted by the plaintiffs that reference to the transcript of proceedings before the Master concerning the making of the order demonstrated that what was proposed was a compromise between solicitor/client costs and indemnity costs.

4 The defendant appeared to concede before me that the Master's order was intended to be something of a compromise between party/party and some other form of taxation. It was submitted, however, that the taxing officer had not embarked upon a party/party taxation.

5 In my view, the reasons of the taxing officer delivered 14 April 1999 dealing with the plaintiffs' notice of objection to taxation, reveal that the taxing officer did proceed on a party/party basis. The taxing officer referred to the maximum allowed for by the relevant scale items, and referred to the notional number of hours for the relevant category of practitioner used to calculate that maximum. He considered the objective complexity of each of the relevant tasks involved in this matter in order to determine a reasonable time for the performance of each of the tasks referred to under the relevant item headings. In each case, he determined that the work, which objectively would have been required, did not justify exceeding the maximum of the scale in any case. Rather, a number of the items allowed by him were allowed at significantly less than the scale rate. There is no reference in his reasons to the need for any greater generosity than is permitted in a normal party/party taxation. Indeed, at page 6 of his reasons, in dealing with the statement of claim, the taxing officer observed that the defendant should not have to bear "in a party/party taxation, the costs incurred by the plaintiffs in successive amendments to the statement of claim...".

6 It is my view that the taxing officer did not err in this course, since the order of the Master can only be understood as an order requiring an ordinary party/party taxation, notwithstanding that it is expressed in unusual terms. So far as the form of the order is concerned, there is nothing in it to indicate that indemnity costs are intended, and it seems to be accepted by both parties that they were not. The expression "solicitor/client" is not used nor is there anything to indicate that the order is intended to be a "generous" one. The lifting of the upper limit to the scale items is not in itself an indication that "generosity" is intended, let alone that the order is other than a party/party order. Generally, the lifting of scale limits reflects no more than a provisional assessment on the part of the judicial officer that work may have been reasonably done which would justify an award in excess of the scale. It says nothing about the basis of taxation.

7 Further, it is to be noted that the Master's order requires the taxing officer to be "satisfied" that the reasonable costs exceed the scale amounts; the taxing officer's satisfaction in respect of the reasonableness of the amount claimed is a characteristic of party/party taxation, although not a characteristic exclusive to such a taxation.

8 I do not think that the "background" to the costs order assists the plaintiffs, if by "background" is meant the terms of the security and the terms of the relief sought by the plaintiffs as to costs. Whether one looks to the expression "solicitor and own client" in the security, or the expression "indemnity" often adopted by the plaintiff, one finds that neither term is reflected in the Master's order. All that can be concluded is that the Master deliberately chose not to make an order containing either of those terms.

9 I accept that where there is a contractual right to costs, the discretion should ordinarily be exercised so as to reflect the contractual right: Bank of Western Australia Ltd v Ponga, unreported; (Master Sanderson) SCt of WA; Library No 980697; 2 December 1998. I accept also that the discretion of the court in respect of orders as to costs does not deprive the plaintiff of any contractual right it may have under the security: Gomba Holdings (UK) Ltd v Minories Finance Pty Ltd (No 2) [1992] 4 All ER 588 at 607 per Scott LJ. However, these propositions simply mean that the plaintiffs would have had an arguable basis for resisting the costs order made by Master Ng and for appealing it if it had been made over the plaintiffs' objections, and that the plaintiffs may yet have a contractual right to recover costs in excess of those recoverable pursuant to the order of Master Ng. Neither of those propositions of law can govern the meaning and effect of the Master's order if it is otherwise clear, as in my view it is.

10 If it were necessary to go to the transcript of argument in order to determine the intended meaning of the order as to costs, the transcript supports the interpretation which I have placed upon that order. The plaintiffs sought costs described variously in the transcript as "indemnity" and "solicitor/client" costs, while the defendant asserted that "nearly [?every] application for summary judgment sought in this Court seeks costs on a party/party basis". There was considerable discussion about those matters, and counsel for the defendant suggested that the "better compromise" might be that the plaintiffs have costs of the application to be taxed and that the taxing officer be given authority to "go beyond the bounds of the scale ... if in fact the taxing officer can be satisfied that more work was done than might normally fall within the allowance for proceedings in chambers".

11 Counsel representing the plaintiffs essentially accepted that proposition. There was further discussion, and a form of words was suggested by counsel for the defendant, and immediately prior to the reading by the Master of what became almost the final form of the order, counsel for the defendant observed:

"Just by way of explanation in case we all go and refer to the transcript later ... the scale is pretty generous anyhow, but if my learned friend could say 'look, we have done all this and we did it because this defence was filed and involved twenty-seven hours in an unusual venture exploring this or that', then the taxing officer could look and say, 'I'm satisfied that is a reasonable incurrence (sic) of the costs which wouldn't have been normally incurred had there not been this defence filed ...'."

12 There was no dissent from that proposition by counsel representing the plaintiffs. What is being described in that passage is an ordinary party/party taxation in which, because of the unusual complexity of the matter or otherwise, it has been necessary for one party to do work which takes its costs beyond the scale.

13 It follows from what I have said that the plaintiffs have not established the error of principle for which they contend. It was put to me in the alternative that an error relating solely to quantum of costs could be overturned if the decision of the taxing officer on its face shows that there cannot have been a proper exercise of the discretion. While I accept that this proposition also is true, there was nothing in the materials put before me which suggests that the quantum arrived at by the taxing officer in respect of any item was so unreasonable as to demonstrate any error of principle. In relation to each of the items the subject of objection, the taxing officer had regard to the scale, read the relevant court files, considered transcript of argument where necessary and looked to records of time actually spent before the court. There is nothing either in that approach or in the result that leads me to conclude that the taxing officer has erred in this case.