Agusta Pty Ltd v Provident Capital Limited (No 2)

[2012] NSWCA 354

Court of Appeal

New South Wales

Case Title:

Agusta Pty Ltd v Provident Capital Limited (No 2)

Medium Neutral Citation:

[2012] NSWCA 354

Hearing Date(s):

On the papers

Decision Date:

12 November 2012

Jurisdiction:

Before:

Campbell JA (at [1]), Barrett JA (at [2]), Sackville AJA (at [17])

Decision:

Notice of motion dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - costs - unsuccessful respondent ordered to pay costs - application for variation of costs order because appeal decided on grounds not raised by appellants - that proposition not sustainable - no reason to disturb existing costs order

Legislation Cited:

Conveyancing Act 1919, s 37A
Real Property Act 1900, ss 105A(2) and (9)

Cases Cited:

Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26
Belar Pty Ltd v Mahaffey [1999] QCA 2; [2000] 1 QdR 477
Gatsios Holdings Pty Ltd v Nick Kritharas Holdings Pty Ltd [2002] NSWCA 29; (2002) ATPR 41-864
Jennings v Mather [1901] 1 QB 108 and [1902] 1 KB 1
Noakes v J Harvy Holmes & Son (1979) 37 FLR 5
savage v Union Bank of Australia Ltd [1906] HCA 37; (1906) 3 CLR 1170

Texts Cited:

Category:

Costs

Parties:

Agusta Pty Ltd - First Appellant
Riva Pty Ltd - Second Appellant
Provident Capital Pty Ltd - First Respondent

Representation

- Counsel:

Mr J T Svehla - Appellants
Ms B K Nolan - Respondent

- Solicitors:

Leon M Ratner & Associates - Appellants
Tiernan Lawyers - Respondent

File number(s):

2010/241786

Publication Restriction:

JUDGMENT

1. CAMPBELL JA: I agree with Barrett JA.

2. BARRETT JA: Judgment was given in this appeal on 8 March 2012: Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26.

3. Among the orders made on that date was an order that the respondent pay the appellants' costs in the proceedings below and of the appeal.

4. The unsuccessful respondent filed, within time, an application for an order varying the orders of 8 March 2012 by omitting the order with respect to costs and substituting one of the following:

   (a)an order that the appellants pay the respondent's costs both at first instance and on appeal;

   (b)an order that the respondent pay the appellants' costs of the appeal and that the appellants pay the respondent's costs at first instance;

   (c)an order that there be no order as to costs.

5. Directions were made for the filing of written submissions on the motion.

6. The foundation for the respondent's application is a contention that the basis on which the appeal was allowed was not raised by the appellants either in their submissions or during the argument of the appeal and that the appellants succeeded on a basis that was "entirely novel". The submissions filed by the respondent say:

   "Without repeating the findings of the Court here, shortly put, the basis upon which the Court disposed of the matter was essentially to find that there was no intention to delay or hinder for the purposes of an application for relief pursuant to s 37A of the Real Property Act 1901 (NSW) ('the Act') by reason of the finding that the statutory protection provided to an unsecured judgment creditor by a writ of levy of property was not available to the judgment creditor outside the protected period of six months as provided for in section 105A(2) and (9) of the Act. That protected period having expired the transfer was not one capable of delay or hindrance of creditors. This is without adverting to the relevant intention."

7. The reference here to s 37A of "the Real Property Act 1901 (NSW)" is presumably intended to be a reference to s 37A of the Conveyancing Act 1919, the provision that was at the centre of the appeal. The subsequent references to ss 105A(2) and (9), however, must be intended to be references to provisions of the Real Property Act 1900, as those provisions were referred to in the judgments on appeal.

8. The above extract from the respondent's submissions, adjusted to correct the statutory references, does not reflect the basis on which the appeal was decided.

9. The essence of the decision that s 37A of the Conveyancing Act did not apply to the disposition by Agusta to Riva was that the property transferred was trust property in the hands of each of them and therefore immune from attachment at law to enforce debts of the trustee, with the consequence that the transfer did not make unavailable a remedy by way of levy of execution that would have been available had the transfer not occurred.

10. The rationale was summarised at paragraph [83] of the principal judgment in this way:

    "In summary, the alienation by Agusta to Riva did not alter the steps that Provident could effectively have taken to enforce against the Kings Park land the money judgment it had obtained against Agusta. Both before and after the alienation, execution at law was not open to trust creditors but they were entitled to assert Agusta's preferred beneficial interest and thereby to obtain equitable execution through the sale of trust property by a receiver appointed by the court. The fact that Agusta's preferred beneficial interest and the creditors' rights of subrogation in relation to it subsisted in the trust assets after they became vested in the new trustee meant that it was not incumbent upon Agusta to obtain from Riva any particular undertaking to protect those creditors. The trust assets, when received by the new trustee, continued to have imposed upon them the entitlements derived by creditors from the former trustee's preferred beneficial interest and this was so whether or not any such undertaking was sought from or given by the new trustee."

11. On that footing, it was found that there was no placing of the property beyond the reach of levy of execution at law and accordingly no alienation with the "intent" referred to in s 37A.

12. Submissions filed for the appellants outline the ways in which the several propositions upon which the Court's decision ultimately turned were raised in the course of argument.

13. Those submissions identify, in particular, references in the course of the hearing to the status of Agusta as a trustee (or trustee de son tort), to a trustee's right of indemnity and exoneration out of trust property, to relevant principles of subrogation and to the question whether a creditor with a judgment against a trustee can levy execution against trust property. The submissions also draw attention to the occasions on which a number of cases material to the judgments were mentioned in the course of argument, including Gatsios Holdings Pty Ltd v Nick Kritharas Holdings Pty Ltd [2002] NSWCA 29; (2002) ATPR 41-864, Belar Pty Ltd v Mahaffey [1999] QCA 2; [2000] 1 QdR 477, Noakes v J Harvy Holmes & Son (1979) 37 FLR 5 and, in particular, savage v Union Bank of Australia Ltd [1906] HCA 37; (1906) 3 CLR 1170 and Jennings v Mather [1901] 1 QB 108 and [1902] 1 KB 1.

14. The analysis of the transcript and the judgments contained in the appellants' submissions shows that the decision proceeded from matters that were raised and ventilated before the Court and that, contrary to the position taken by the respondent, the case is not one in which there was resort to some "entirely novel" basis.

15. The respondent has accordingly shown no basis on which the costs order should be disturbed.

16. The respondent's notice of motion filed on 22 March 2012 should be dismissed with costs.

17. SACKVILLE AJA: I agree with Barrett JA.

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