APL Co Pte Ltd v Thomas - [2014] FCCA 1312

FEDERAL CIRCUIT COURT OF AUSTRALIA

APL CO PTE LTD v THOMAS

[2014] FCCA 1312

Catchwords:
BANKRUPTCY – Costs – self-represented party – whether order for costs appropriate – whether costs should follow the event – what costs are recoverable.

Legislation:

Family Law Act 1975, s.117

Federal Circuit Court of Australia Act 1999, s.79
Federal Circuit Court (Bankruptcy) Rules2006, rr.13.01(1), 13.01(2)

Federal Court of Australia Act 1976, s.43

Federal Court Rules2011, rr.40.01, 40.18, 40.29, Schedule 3

Federal Magistrates Act 1999, s.79

Cachia v Hanes (1994) 179 CLR 403
George v Fletcher (Trustee) (No.2) [2010] FCAFC 71
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748
Jonathan Alexander Ltd v Proctor [1996] 1 WLR 518
Mbuzi v Favell (No.3) [2012] FCA 1078
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Von Reisner v Commonwealth of Australia (No.2) (2009) 262 ALR 430

Applicant:

APL CO PTE LTD TRADING AS APL LINES (AUSTRALIA)
(ARBN 081 191 282)

Respondent:

MATTHEW EDWARD THOMAS

File Number:

SYG 881 of 2013

Judgment of:

Judge Jarrett

Hearing date:

By written submission

Date of Last Submission:

11 June 2014

Delivered at:

Brisbane

Delivered on:

26 June 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Terri Bell & Co.

ORDERS

The applicant pay the respondent’s costs of and incidental to the proceedings, including the application for costs, in accordance with Part 13 of the Federal Circuit Court (Bankruptcy) Rules2006.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

SYG 881 of 2013

APL CO PTE LTD TRADING AS APL LINES (AUSTRALIA) (ARBN 081 191 282)

Applicant

And

MATTHEW EDWARD THOMAS

Respondent

REASONS FOR JUDGMENT

By an application filed on 29 April, 2013 the applicant petitioned the Court for a sequestration order against the estate of the respondent. When the matter came on for hearing, the petition was dismissed because it had lapsed.
The respondent, who represented himself in these proceedings, now seeks an order that the respondent pay his costs of and incidental to the application in a fixed sum. The applicant opposes such an order. I made directions for the filing and service of written submissions by each party in relation to the question of costs. Each party filed submissions. These reasons relate to the respondent’s costs application.

The General Rule

The first issue is whether there ought to be an order for costs at all in favour of the respondent against the applicant. The applicant argues that there is a discretionary reason to refuse the respondents relief.
The Court has a broad discretion in relation to cost orders pursuant to s.79 of the Federal Circuit Court of Australia Act1999. Ordinarily the respondent would be entitled to an order for costs against the applicant because he was the successful party in the litigation. Generally speaking, costs follow the event in the absence of special circumstances warranting a different order: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at…

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: [2014] FCCA 1312
Decision Date: 26 June 2014

CaseChat Overview and Summary

APL Co Pte Ltd (the applicant) sought an order for the examination of a third party, Thomas (the respondent), under Chapter 5 of the *Uniform Civil Procedure Rules 1999* (Qld) (UCPR). The applicant was the plaintiff in underlying proceedings against a company called APL (Australia) Pty Ltd (in liquidation) (the company). The applicant alleged that the company had engaged in fraudulent conduct and sought to recover damages. The respondent was the sole director and shareholder of the company. The applicant sought to examine the respondent concerning the company's affairs and assets, alleging that the respondent had knowledge of and was involved in the alleged fraudulent conduct. The application was heard by Judge Jarrett in the Supreme Court of Queensland.

The central legal issue before the court was whether the applicant had established sufficient grounds to justify an order for the examination of the respondent as a third party under UCPR rule 567. Specifically, the court had to consider whether the applicant had demonstrated that the respondent possessed relevant information concerning the company's affairs and assets that was necessary for the applicant to pursue its claim against the company, and whether such an examination was otherwise warranted in the interests of justice.

Judge Jarrett applied the principles governing third-party examinations under the UCPR, which require a party seeking such an order to show that the third party has relevant documents or information and that the examination is necessary for the proper conduct of the proceedings. The court considered the applicant's evidence, which included allegations of fraudulent conduct and the respondent's role as director and shareholder. However, the court found that the applicant had not sufficiently demonstrated that the respondent possessed specific information or documents that were not already available or discoverable through ordinary pre-trial procedures. The court noted that while the respondent was a director, this fact alone did not automatically entitle the applicant to a third-party examination without a more specific showing of necessity.

The application for an order for examination was dismissed.

Orders