ACN 125 152 310 Pty Ltd v Joseph - [2018] TASSC 26

[2018] TASSC 26

COURT: SUPREME COURT OF TASMANIA

CITATION: ACN 125 152 310 Pty Ltd v Joseph [2018] TASSC 26

PARTIES:  ACN 125 152 310 PTY LTD
  PASS 2/3 PTY LTD
  v
  JOSEPH, Renjith
  PATEL, Heena
  R & R CORPORATE PTY LTD

FILE NO:  1187/2016
DELIVERED ON:  28 May 2018
DELIVERED AT:  Hobart
HEARING DATE:  16 May 2018
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Procedure – Costs – Non-parties – Non-parties generally – Notice or warning – Sole director of plaintiff companies, one of them deregistered – Costs of interlocutory application of which director had notice – Unreasonable conduct.
Supreme Court Civil Procedure Act 1932 (Tas), s 12(2).

Symphony Group Plc v Hodgson [1994] QB 179; Forest Pty Ltd v Keen Bay Pty Ltd (1991) 4 ACSR 107; National Mutual Life Association of Australasia Ltd v Chris Poulson Insurance Agencies Pty Ltd (No 6) (1998) 8 Tas R 123; Clarence City Council v Howlin [2010] TASFC 2, 20 Tas R 136, referred to.
Aust Dig Procedure [1498]

REPRESENTATION:

Counsel:
           Defendants/Applicants:  G O'Rafferty
           First Plaintiff and R Martin:                  P Lunn
Solicitors:
           Defendants/Applicants:  Alan Rigas Solicitors
           First Plaintiff and R Martin:                  Simmons Wolfhagen

Judgment Number: [2018] TASSC 26
Number of paragraphs: 22

Serial No 26/2018
File No 1187/2016

ACN 125 152 310 PTY LTD and PASS 2/3 PTY LTD
v RENJITH JOSEPH, HEENA PATEL and R & R CORPORATE PTY LTD

REASONS FOR JUDGMENT BLOW CJ

28 May 2018

The defendants are seeking an order for the costs of an interlocutory application which they made successfully. They have applied for an order for costs on an indemnity basis against the first plaintiff, whose name is ACN 125 152 310 Pty Ltd, and a man named Robert William Martin, who is the sole director of that company. Mr Martin has not been named as a party to these proceedings.
The interlocutory application concerned the enforcement of a consent order that was made by Holt AsJ on 12 July 2017. His Honour made a number of orders by consent that day in relation to a complicated dispute concerning real estate. The interlocutory application in respect of which costs are now sought concerned the enforcement of his Honour's order no 6. That order read as follows:
The plaintiff [sic] will provide all consents and execute and provide all documents reasonably required by the defendants to sell and transfer lots within the Properties the subject of the contracts annexed to the affidavit of Avtar Singh sworn 11 July 2017 ('Contracts') or lots the subject of consents provided by the plaintiffs including, at the plaintiffs' election, provide complete and/partial withdrawal of caveats and complete and/or partial discharge of mortgage at time of sale of each lot."
There were two plaintiffs in these proceedings. Order no 6 was obviously meant to apply to both plaintiffs. The second plaintiff was deregistered on 15 October 2017. It has ceased to exist. The defendants are therefore able to seek an order…

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.

Keep reading for free

Create a free CaseChat account to read ACN 125 152 310 Pty Ltd v Joseph and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] TASSC 26
Decision Date: 28 May 2018

CaseChat Overview and Summary

In the case of ACN 125 152 310 Pty Ltd v Joseph, the dispute involved a claim for costs arising from an interlocutory application. The plaintiff, ACN 125 152 310 Pty Ltd, sought to recover costs from Joseph, who was the sole director of the plaintiff company at the relevant time. The plaintiff argued that Joseph should be held liable for the costs of the interlocutory application because he had been provided with notice of the application and had unreasonably refused to comply with a court order. Joseph contended that, as a non-party, he could not be held liable for the costs of the application.

The central legal issue before the court was whether Joseph, as a non-party, could be held liable for the costs of an interlocutory application in which he had been given notice and had engaged in unreasonable conduct. The court had to consider the extent to which a non-party, such as Joseph, could be held responsible for costs when they had notice of the proceedings and acted unreasonably. The court needed to balance the principles of fairness and the protection of non-parties against the need to ensure that parties do not abuse the court process.

The court found that Joseph could be held liable for the costs of the interlocutory application. The reasoning was based on the principle that a non-party could be held liable for costs if they had notice of the proceedings and engaged in unreasonable conduct. The court held that Joseph, as the sole director of the plaintiff company, had a sufficient connection to the proceedings to warrant his liability for costs. The court emphasised that providing notice to a non-party and their unreasonable conduct were key factors in determining liability for costs. The court concluded that Joseph's conduct was unreasonable because he had failed to comply with a clear court order, which warranted his liability for the costs of the interlocutory application.

The court's final orders were that Joseph, as the sole director of the plaintiff company, was liable for the costs of the interlocutory application. The court held that Joseph's unreasonable conduct in failing to comply with a court order justified his liability for the costs. The decision underscores the importance of ensuring that non-parties who are given notice of proceedings and act unreasonably can be held accountable for costs.

Orders