Astral Land Pty Ltd v Wellington Parkland Pty Ltd
[2012] WASC 273 (S)
ASTRAL LAND PTY LTD -v- WELLINGTON PARKLAND PTY LTD [2012] WASC 273 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 273 (S) | |
| Case No: | CIV:2518/2011 | 7 NOVEMBER 2012 | |
| Coram: | KENNETH MARTIN J | 18/01/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Modified costs orders and leave to amend pleading in terms of minute refused | ||
| B | |||
| PDF Version |
| Parties: | ASTRAL LAND PTY LTD LIAS ARIPIN WELLINGTON PARKLAND PTY LTD LUAN MAY WONG |
Catchwords: | Costs Special orders Scale allowances Multiple amendments to statement of claim Pleading issues Fraud pleas |
Legislation: | Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA) Legal Profession Act 2008 (WA), s 280 |
Case References: | Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274 (S) Astral Land Pty Ltd v Wellington Parkland Pty Ltd [2012] WASC 273 Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2) Redhill Iron Ltd v API Management Pty Ltd [2012] WASC 323 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
LIAS ARIPIN
Second Plaintiff
AND
WELLINGTON PARKLAND PTY LTD
First Defendant
LUAN MAY WONG
Second Defendant
Catchwords:
Costs - Special orders - Scale allowances - Multiple amendments to statement of claim - Pleading issues - Fraud pleas
Legislation:
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA)
Legal Profession Act 2008 (WA), s 280
(Page 2)
Result:
Modified costs orders and leave to amend pleading in terms of minute refused
Category: B
Representation:
Counsel:
First Plaintiff : Mr S M Davies SC & Mr J D MacLaurin
Second Plaintiff : Mr S M Davies SC & Mr J D MacLaurin
First Defendant : Mr M L Bennett
Second Defendant : Mr M L Bennett
Solicitors:
First Plaintiff : DLA Piper Australia
Second Plaintiff : DLA Piper Australia
First Defendant : Bennett & Co
Second Defendant : Bennett & Co
Case(s) referred to in judgment(s):
Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274 (S)
Astral Land Pty Ltd v Wellington Parkland Pty Ltd [2012] WASC 273
Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2)
Redhill Iron Ltd v API Management Pty Ltd [2012] WASC 323 (S)
(Page 3)
1 KENNETH MARTIN J: Issues which have arisen in the aftermath of my published reasons of 31 July 2012, Astral Land Pty Ltd v Wellington Parkland Pty Ltd [2012] WASC 273, are threefold. Namely:
(a) Appropriate dispositive costs orders consequent upon those reasons with my prima facie view (see par 58), being that the defendants as the successful party at both special appointments on 23 March and 14 June 2012, ought receive their taxed costs of those applications. The plaintiffs (Astral and Mr Aripin) resist the making of such orders. Their position is that the defendants should actually pay them 50% of the costs of the summary judgment and strike out applications heard at the special appointments on those two dates.
(b) Special costs orders claimed by the defendants in respect of eight iterations of the plaintiffs' statement of claim, between 3 October 2011 and 19 October 2012.
(c) The plaintiffs' motion for leave to amend in accord with their most recent minute of proposed substituted statement of claim dated 19 October 2012, which is resisted by the defendants on the basis of asserted ongoing pleading deficiencies particularly as regards par 22A(b) and par 28A (and in consequence par 22B and par 28B). The defendants also attack par 33A, par 34B and par 37(d) of the latest minute. The preface to par 39A is complained of in the context of a plea of breach of fiduciary duty par 40(ba) and (bb). All pleas, save for par 39A, relate to the first and second representations sought to be falsified by Astral and Mr Aripin in the present iteration; see par 46 of my earlier reasons. There I pointed out that alleged representations concerning June 2006 and November 2007 in that minute went nowhere, as there had been no plea to falsify them. The position has now evolved. What was a 35-page minute of pleading is now a 43-page minute.
Issue (a): Dispositive orders arising out of my reserved reasons of 31 July 2012
2 These reasons should be read with my reasons delivered today in the counter-part action CIV 2239 of 2011: Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274 (S). I dealt with costs arguments in relation to both matters on 7 November 2012.
(Page 4)
3 The defendants are content with the prima facie costs order I foreshadowed in their favour at par 58 of my reasons. But Astral and Mr Aripin are not. Astral and Mr Aripin would seek 50% of the costs of the hearings and no costs at all to the defendants. That stance as to costs was articulated in Astral's written submissions of 31 October 2012 and amplified by senior counsel at the hearing on 7 November 2012. In their submissions Astral and Mr Aripin say at pars 3 - 4:
The statement of claim was struck out on a narrow basis (i.e. on what might be described as the 'Repayment Issue').
The broader attack on a majority of the paragraphs of the statement of claim, which were the subject of the submissions filed, and the conferral engaged in, failed.
4 That submission as to costs advanced by the plaintiffs in my assessment refuses to acknowledge the reality of the plaintiffs' prior interlocutory defeats. It is a position that largely ignores what I wrote on 31 July 2012. Clearly on 23 March and 14 June 2012 Astral lost heavily, by reason of what I described at par 44 of my earlier reasons as a basal problem. The present suggestion or rationalisation that this was somehow a half victory for them, suggests a concerning inability on the part of the plaintiffs to accept reality.
5 Costs should properly follow the event in my view.
6 Arguments by Astral to the contrary, including an argument that there were other pleading issues not ventilated, should be dismissed. I repeat the reasons I gave dismissing similar arguments on the Golden Commercial costs application.
7 Accordingly, an order that the plaintiffs pay the costs of the defendants' application to strike out the re-amended statement of claim of 20 March 2012 including the costs of the special appointments heard on 23 March and 14 June 2012, to be taxed if not agreed, is appropriate. Such taxed amounts are to be paid within 14 days.
8 The defendants also seek an order for a taxation to proceed without regard to the maximum limits (including hourly limits) prescribed by the relevant scale. In argument, potential scale items identified, apart from hourly limits, were items 10A, 17, 24 and 33 found within the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA).
(Page 5)
9 Where an application is made pursuant to s 280(2) of the Legal Profession Act 2008 (WA), on the basis of inadequacy of allowable costs by reason of the unusual difficulty, complexity or importance of a matter, I do not assess it as generally appropriate, particularly where the present is not a situation of an award of indemnity costs, for there to be a blanket removal of all costs ceilings in the scale. I agree with observations by Edelman J on this issue in Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2). His Honour said [24]:
… Section 280 does not contemplate a usual course of removing all limits because of unusual difficulty, complexity or importance. It focuses attention upon particular items.
10 Particular items in question were identified during oral argument as the items I have mentioned above. Provided it is understood (and to that end I would make a direction in accord with s 280(2)(d)) that the defendants are to receive their costs on a basis of separate awards in respect of the special appointments before me on 23 March 2012 and 14 June 2012, the necessary threshold of showing some potential inadequacy in the level of scale allowances has not been demonstrated. (See as well the observations by Beech J in Redhill Iron Ltd v API Management Pty Ltd [2012] WASC 323 (S) [10] - [12].) Nor am I persuaded as to a potential inadequacy in the scale allowances in relation to hourly limits.
Issue (b): Special costs orders - 8 iterations of a statement of claim over the period 3 October 2011 to 19 October 2012
11 The application of the defendants proceeds seeking costs thrown away on a global basis made by reference to the eight iterations of the plaintiffs' prior pleadings. These are respectively a:
(1) minute of proposed statement of claim of 3 October 2011;
(2) statement of claim of 19 December 2011;
(3) amended statement of claim of 10 January 2012;
(4) re-amended statement of claim of 20 March 2012;
(5) further re-amended statement of claim of 30 April 2012;
(6) minute of proposed substituted statement of claim of 30 April 2012;
(Page 6)
- (7) minute of proposed substituted statement of claim of 21 August 2012; and
(8) amended minute of proposed substituted statement of claim of 19 October 2012.
12 I repeat the observations I have made today in Golden Commercial where similar wasted costs were sought by reason of amendments.
13 A first point is to recognise a distinction between actual pleadings and minutes of proposed pleadings. In the present case there are, relevantly, four minutes and four actual filed statements of claim. The plaintiffs are presently seeking leave (which is opposed: see issue (c)) to amend in accord with their most recent amended minute of 19 October 2012. Second, I repeat what I have said in Golden Commercial today concerning the effect of O 66 r 3 of the Rules of the Supreme Court 1971 (WA) as regards costs of and occasioned by amendments without leave. That rule provides the costs are borne by the party making the amendment, unless the court orders otherwise.
14 In this matter, I did make discrete costs orders at directions hearings on 1 September 2011 (costs in the cause), 22 September 2011 (costs to the defendants in any event and any costs thrown away to be the defendants), 8 December 2011 (joint costs awarded in both actions fixed in the amount of $2,282), 21 December 2011 (costs in the cause), 8 February 2012 (costs in the cause), 26 September 2012 (costs in the cause). These orders stand. There must be no duplication or overlap in respect of any of these costs which are the subject of express orders already made. Otherwise, however, the effect of O 66 r 3 carries with it an entitlement to costs for the defendants arising out of the plaintiffs' amended pleadings of 10 January 2012, 20 March 2012 and 30 April 2012.
15 If leave is granted (see issue (c)) to amend in accordance with the most recent amended minute of 19 October 2012, there would arise an issue as to the terms upon which any such leave should be granted.
16 Bearing in mind what I said in Golden Commercial at [45] concerning amendments and the principle of costs thrown away being to compensate for actual waste incurred, I see no reason why the defendants ought not have an opportunity to show wasted costs and, if they can, any wasted costs of conferral. Such an application would of course need to proceed on proper evidence before a Registrar of this court.
(Page 7)
17 I am not persuaded it is appropriate that there be adjustments or removal of any of the ceiling allowances potentially applicable in that exercise. This is not an occasion on which indemnity costs are being sought or ordered. If, in the taxation, there is ascertained to be some waste translating to an award of costs in favour of the defendants, then in keeping with the 'pay as you lose' philosophy of the CMC List, there is every reason why the taxed costs should be paid now, rather than stood over until some indeterminate future point. Any costs ascertained to be wasted costs in the taxation should be payable immediately.
Issue (c): Further challenges to the latest amended minute of proposed substituted statement of claim of 19 October 2012
18 By amendments seen at par 32A to the 19 October 2012 minute of proposed pleading, Astral and Mr Aripin would now seek to contend a sham arrangement arose during November 2007 (see Astral Land v Wellington Parkland at [39]). If the November 2007 arrangements are assessed as a sham then Astral, not Mr Aripin, would be the relevant protagonist for loss. On the other hand, if there is no sham and Astral did receive back its invested money in November 2007, then it was Mr Aripin personally who had ultimately made the relevant investments as revised subsequently with Ms Wong. Mr Aripin personally would then be the correct plaintiff.
19 That distinction is relevant concerning the preface seen to par 39A. Senior counsel for Astral and Mr Aripin submitted that even if the November 2007 funds arrangements was not a sham and Astral's 2006 or 2005 investment funds were returned to it, Astral would still be seeking loss for some interest component. That provides insight as to the phrase of 'further or alternatively' as seen in the preface to par 39A. On that basis it is said that concerns of the defendants about double recovery are unwarranted. In my view the preface, whilst somewhat potentially diverting, can be tolerated in light of that explanation.
20 The remaining attacks essentially concern what are defined in the latest minute as the second and third representations and how they are derived. It can now be seen (see par 22A and par 28A), that these representations are now said to be implied. In each case they are implied by reason of statements made orally, found either in par 22 as regards the second representations, or in par 28 as regards the third representations.
(Page 8)
21 The remaining concern of the defendants over these pleas in the present minute is the basis of their implication, particularly as regards the phrase 'in the first plaintiffs interests' seen in par 22A(b) and par 28A(b). I can ascertain (just) enough to support an arguable implication that the payments were made in error (out of the statements in par 22 and par 28 in reference to $1.4 million), ought not to have been made and ought instead to have been paid otherwise (and a need for rectification as a result). But my assessment is that it crosses the line of credulity to go on to assert that there is a basis for the further implication that to correct the error was 'in [Astral's] interest'.
22 I do ascertain a sufficient basis for the argued implication, as regards the second and third representations, that it was necessary an error be corrected. That I think can be extracted out of the phrase 'ought not' and 'ought instead' and 'should be rectified'. But, in my view, no arguable basis for any further implication arises, as regards the phrase 'necessary in [Astral's] interests'. In fact, as regards par 28A(b) there is some positive indication to the contrary, on the basis that it was in Ms Wong's interests for some correcting to take place by reason of div 7A being 'applied on her'.
23 In circumstances where these representations feed into and support very serious argued contentions as to fraud by common law deceit (see par 33A, par 34B) this type of confused and diverting plea cannot stand.
24 The most recent minute seeks to sustain a legitimate basis for what were formerly the second and third representations in the earlier iterations. That is in circumstances where I had indicated in Astral Land v Wellington Parkland there had been no plea ascertainable that sought to falsify those representations. That was a difficulty (see my observations at [46]). The effort in the most recent minute to keep those pleas alive, rather than jettison them is a recurrent feature I ascertain is the modus operandi of the plaintiffs. Rather than concentrating on what is the major issue concerning an asserted loss by a 20% investment in the first defendant at an unwarranted high price, the plaintiffs look to have obsessed over marginal issues in a sustained effort to avoid ever having to accept its pleadings have any deficiencies. Here its latest effort has overstrained to defend the indefensible. In consequence, this has brought its whole house down.
25 I will not allow the amendments as foreshadowed in the current minute until the offending paragraphs are modified.
(Page 9)
26 In the context of what is bluntly said by Astral and Mr Aripin to be their fraud case against the defendants, there is a vital need for coherence in their pleas that still does not manifest. Efforts to drag the first and second representations into what is now a tenuous plea of breach of a fiduciary duty of Ms Wong not to act otherwise than in good faith towards Mr Aripin (pars 40(ba) and (bb)) must sustain the same terminal fate by reason of the incorporation of the primary infection.
27 The plaintiffs' application for leave in respect of this minute must be refused until the residual deficiencies are properly corrected.
28 The defendants should have their costs of this application to be taxed and paid immediately.
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