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  • Writer's pictureMichael Bacina

Courting Trouble at Christmas on Costs

Christmas is a time for kindness and sharing. Perhaps a time not to press every legal advantage under a contract. As one party just learned in the decision of Leng v Miller in the Supreme Court of Western Australia. While nothing to do with technology or blockchain, sometimes it's good to see that those who try to do the right thing will have those actions recognised.

The Catchwords highlighted at the start of the case give a small clue of what was to come:

The plaintiff owned a farm and had granted a lease to the defendants, which had expired earlier this year, but the defendant had failed to leave the farm. The plaintiff had sued for possession and sought summary judgment (which was gently critiqued by the judge) but ultimately the parties settled and the defendant agreed to deliver up the farm.

There were delays by the defendant leaving the farm, and the judge noted there was livestock to be dealt with, suggesting a rather unfortunate shortcut to deal with those animals which could have been followed:

The plaintiff was entitled to a costs order but pressed for indemnity costs, both under the lease (which does not bind the court) and generally. However the judge was not impressed with what was described as "both demanding and intransigent" correspondence from the plaintiff. The Court declined the application for indemnity costs, saying:

Those of us who are mired in the court system still occasionally view the real world through the glass darkly. The defendants here were not being intentionally difficult. They moved as quickly as possible to deal with a difficult problem. They had in mind the welfare of God's Creatures. Making of an indemnity costs order would be draconian.


It is perhaps unfortunate that the plaintiff and her solicitors had not had a visit from the ghost of Christmas past. If that had happened, bearing in mind the invidious position the defendants found themselves in, then perhaps the application for indemnity costs would not have been made. There is no doubt the plaintiff is entitled to their costs but in the circumstances of this case I am not satisfied costs should be awarded on an indemnity basis. Humanity must prevail.

And in a wonderful close to the decision:


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