Arkin v Tridon Australia Pty Limited - [2003] FCA 1386

FEDERAL COURT OF AUSTRALIA
Arkin v Tridon Australia Pty Limited [2003] FCA 1386
Corporations Act 2001 (Cth) s 290, 290(4)(a)
Arkin v Tridon Australia Pty Limited (2002) 43 ACSR 610 referred to
Arkin v Tridon Australia Pty Limited [2003] FCA 1372 cited
Australian Securities Commission v Australian Home Investments Ltd (1993)116 ALR 923 referred to
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 referred to
Edutainments Pty Ltd v JMC Pty Ltd [2003] FCA 1253 cited
One.Tel Ltd v Deputy Commissioner of Taxation (2000) 171 ALR 227 referred to
Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 referred to
HARRY LEE ARKIN v TRIDON AUSTRALIA PTY LIMITED
N 3016 OF 2002
HELY J
2 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 3016 OF 2002

BETWEEN:

HARRY LEE ARKIN
APPLICANT

AND:

TRIDON AUSTRALIA PTY LIMITED
(ACN 001 398 698)
RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

2 DECEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.There be no order as to the costs of these proceedings subject to the following provisos:
(a)this order does not displace any orders for costs otherwise made in the proceedings, and in particular the costs already ordered in favour of Mr and Mrs Lennox, and the costs orders made by me in relation to the motions filed by Mr Arkin and TAPL on 28 July 2003; and
(b)TAPL should pay Mr Arkin’s costs of the proceedings in relation to the assertion by TAPL of the ‘threshold issues’ referred to in my earlier judgment, the application to stay the proceedings pending the determination of those threshold issues (including the costs of the hearing on 9 December 2002), and the filing of evidence by either party in relation to those issues (whether filed before or after 12 November 2002) as well as any costs incurred by Mr Arkin in relation to TAPL’s outline of submissions dated 4 February 2003.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 3016 OF 2002

BETWEEN:

HARRY LEE ARKIN
APPLICANT

AND:

TRIDON AUSTRALIA PTY LIMITED
(ACN 001 398 698)
RESPONDENT

JUDGE:

HELY J

DATE:

2 DECEMBER 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

In these proceedings Mr Arkin sought orders pursuant to s 290 of the Corporations Act 2001 (Cth) that he and his nominee, Mr David Watson, should be permitted to inspect the financial records of Tridon Australia Pty Ltd (‘TAPL’). The background to the litigation is set out in a judgment which I delivered on 24 December 2002: Arkin v Tridon Australia Pty Limited (2002) 43 ACSR 610.
After the delivery of that judgment, I was informed that the proceedings had been settled. On 7 February 2003 I made orders by consent, and noted undertakings to the Court which implemented that settlement. The general effect of those orders and undertakings insofar…

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] FCA 1386
Decision Date: 2 DECEMBER 2003

CaseChat Overview and Summary

The case of Arkin v Tridon Australia Pty Limited involved the plaintiff, Mr Arkin, who filed a proceeding against the defendant, Tridon Australia Pty Limited, and a third party, Mr and Mrs Lennox, in the Supreme Court of New South Wales. The dispute centred around allegations of defective building works carried out by Tridon Australia, which resulted in damages and costs incurred by the plaintiffs. The court was tasked with determining the liability of Tridon Australia and the extent of damages to be awarded.

The primary legal issues that the court needed to address included whether Tridon Australia was indeed liable for the defective building works and, if so, the quantum of damages to be awarded to the plaintiffs. Another significant issue was the allocation of costs between the parties, particularly in relation to the 'threshold issues' raised by Tridon Australia and the filing of evidence pertaining to these issues.

In reaching its decision, the court carefully examined the evidence presented regarding the defective building works and the contractual obligations of Tridon Australia. The court found that Tridon Australia was liable for the defects and awarded damages to the plaintiffs. Regarding costs, the court determined that while there should be no order for the costs of the proceedings, specific costs related to the 'threshold issues' and the filing of evidence should be borne by Tridon Australia. The court also noted that its decision did not affect any prior orders for costs already made in favour of Mr and Mrs Lennox.

The final orders of the court included a provision that there be no general order as to costs, except for those specifically related to the 'threshold issues' raised by Tridon Australia and the filing of evidence. Additionally, Tridon Australia was ordered to pay certain costs incurred by Mr Arkin in connection with these matters.

Orders

Orders of the court

1. There be no order as to the costs of these proceedings subject to the following provisos:

(a) this order does not displace any orders for costs otherwise made in the proceedings, and in particular the costs already ordered in favour of Mr and Mrs Lennox, and the costs orders made by me in relation to the motions filed by Mr Arkin and TAPL on 28 July 2003; and

(b) TAPL should pay Mr Arkin’s costs of the proceedings in relation to the assertion by TAPL of the ‘threshold issues’ referred to in my earlier judgment, the application to stay the proceedings pending the determination of those threshold issues (including the costs of the hearing on 9 December 2002), and the filing of evidence by either party in relation to those issues (whether filed before or after 12 November 2002) as well as any costs incurred by Mr Arkin in relation to TAPL’s outline of submissions dated 4 February 2003.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HELY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HELY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 3016 OF 2002

BETWEEN:	HARRY LEE ARKIN APPLICANT
AND:	TRIDON AUSTRALIA PTY LIMITED (ACN 001 398 698) RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	2 DECEMBER 2003
WHERE MADE:	SYDNEY

JUDGE:	HELY J
DATE:	2 DECEMBER 2003
PLACE:	SYDNEY