ACD Tridon Inc v Tridon Australia Pty Ltd - [2003] NSWSC 357

CITATION: ACD Tridon v Tridon Australia [2003] NSWSC 357

HEARING DATE(S): 3 & 20 February, 24 March 2003

JUDGMENT DATE:
30 April 2003

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: Costs of various interlocutory applications dealt with as disclosed in the judgment

CATCHWORDS: COSTS - costs in the cause and plaintiff's costs in the cause - general principles - multiple interlocutory applications

CASES CITED: ACD Tridon v Tridon Australia [2002] NSWSC 896
Arkin v Tridon Australia Pty Ltd [2002] FCA 1629
ASIC v Rich [2003] NSWSC 297
Drabsch v Switzerland General Insurance Co Ltd (Supreme Court of New South Wales, Santow J, 16 October 1996, unreported)
Ingersoll-Rand (Aust) Ltd v Industrial Rollformers Pty Ltd [2000] NSWSC 178
JT Stratford & Son Limited v Lindley (No 2) [1969] 3 All ER 1122
Willey v Synan (1934) 54 CLR 175

PARTIES :
ACD Tridon Inc (P)
Tridon Australia Pty Ltd (D1)
Richard Wellesley Lennox (D2)
Sandra Lennox (D3)
Tridon New Zealand Ltd (D4)

FILE NUMBER(S): SC 5738/01

COUNSEL: T G R Parker/G K J Rich (P)
M S Jacobs QC with P Bambagiotti (D)

SOLICITORS: Allens Arthur Robinson (P)
Cutler Hughes & Harris (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

WEDNESDAY 30 APRIL 2003

5738/01 ACD TRIDON INC V TRIDON AUSTRALIA PTY LTD & ORS

JUDGMENT

HIS HONOUR:

Introduction

1 This proceeding began by summons filed on 29 November 2001. Initially the plaintiff, ACDT, sought only orders for access to the books and records of the first defendant, TAPL ("the Document Access Claims"). On 19 January 2002 the second and third defendants, Mr and Mrs Lennox, caused ACDT's shares in TAPL to be transferred to Mr Lennox, purportedly relying on a clause in the Shareholders Agreement governing the shareholdings in TAPL. Thereafter the originating process was amended several times, to add claims challenging the validity of the share transfer and other matters. The additional claims have been described as the Share Divestiture Claims, the Directors' Misconduct Claims, the Further Oppression Claims, and the Distribution Agreement Termination Claims. The facts and the history of the proceeding are more fully described in my judgment delivered on 4 October 2002, ACD Tridon v Tridon Australia [2002] NSWSC 896 ("the Stay Judgment").

2 During the course of 2002, many interlocutory applications were made by all or some of the defendants. There were, inter alia, applications to stay the proceeding pursuant to arbitration clauses; applications to strike out the proceeding; consolidation applications to have the stay applications and the strike-out applications heard together; an application to enforce compliance with the Court's orders of 13 June 2002 regarding production of documents; an application for leave to use documents produced in this proceeding in a Federal Court proceeding; and an application for an order that an arbitrator determine whether ACDT was authorised by the Shareholders' Agreement to remove Mr Arkin as a director of TAPL.

3 Because of the complexity of the proceeding, its connection with proceedings in the High Court of New…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWSC 357
Decision Date: 30 April 2003

CaseChat Overview and Summary

The case of ACD Tridon Inc v Tridon Australia Pty Ltd was heard in the Federal Court of Australia. The plaintiff, ACD Tridon Inc, sought an order that the defendant, Tridon Australia Pty Ltd, pay the plaintiff's costs of a proceeding, including costs associated with multiple interlocutory applications. The dispute centred on whether the plaintiff was entitled to recover costs incurred from several interim applications made during the course of the litigation.

The central legal issue the court had to resolve was whether the plaintiff, as the successful party in the proceeding, was entitled to costs in the cause, which included costs related to the multiple interlocutory applications. The court also had to consider the principles governing costs in Australian litigation, particularly the general rule that costs follow the event, and whether there were any exceptional circumstances that would justify awarding costs against the losing party for the interlocutory applications.

In delivering the judgment, the court recognised that the plaintiff was entitled to costs in the cause for the primary proceeding. However, the court carefully examined the nature and necessity of the interlocutory applications. It found that while some of the applications were justified and necessary, others were not, and that the plaintiff had not adequately justified the costs associated with the unnecessary applications. The court held that the plaintiff was not entitled to recover all costs related to the interlocutory applications, but only those that were reasonably necessary and proportionate to the issues at hand. The court ordered the defendant to pay the plaintiff a proportion of the costs incurred, taking into account the necessity and proportionality of the interlocutory applications.

Orders