CITATION: Augment Communications Pty Limited (In Liquidation) v Sedgwick & Ors [2008] NSWDC 251
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 15 & 16 October 2008
JUDGMENT DATE:
21 November 2008JURISDICTION: District Court - Civil - Commercial List JUDGMENT OF: Levy SC DCJ DECISION: 1. The points of claim seeking to rely on alleged representations made by non-parties and claimed to be in breach of the Trade Practices Act, 1944 (Cwth) are struck out.
2. The First Defendant / Respondent to the first motion is ordered to pay the Applicant’s costs of the second motion.CATCHWORDS: COSTS MOTION – motion for strike out of points of claim in support of claim for costs order to be made against non-parties – solicitors who had acted for unsuccessful plaintiff and former director of unsuccessful party in the principal proceedings – alleged representations by non-parties said to be misleading and/or deceptive – allegedly made by solicitors and the party represented by those solicitors – whether claimed costs remedies based on Part V of Trade Practices Act, 1974 (Cwth) are justiciable or triable issues properly raised in connection with a motion for costs against non-parties following conclusion of the principal proceedings. - STRIKE OUT – whether points of claim should be struck out for being frivolous, vexatious, disclosing no reasonable cause of action, having a tendency to cause prejudice, embarrassment or delay in the conclusion of the proceedings and amounting to a contrivance and abuse of the process of the court. LEGISLATION CITED: Legal Profession Act, 2004, s.348(1)
Trade Practices Act, 1974 (Cwth), s.4(1), s.52, s.75B
Civil Procedure Act, 2005, s.56, s.98, s.99
Uniform Civil Procedure Rules, 2005, Rule 13.4, Rule 14.28, Rule 42.3CASES CITED: AAMI v NRMA Insurance Ltd [2002] 124 FLR 518
Beach Club Port Douglas Pty Ltd v Page [2005] QSC 195
Butt v Tingey [1993] FCA 369
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Cran v The State of New South Wales (2004) Aust Torts Rep 81 – 737
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
D’Orta-Ekenaike v Victoria Legal Aid [2005] 223 CLR 1
Energex Limited v Alstrom Australia Ltd [2004] FCA 575
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Knight & Anor v F.P. Assets Limited & Ors (1992) 174 CLR 178
Little v Law Institute of Victoria [1990] VR 247
Stockland (Constructors) Pty Limited v Retail Design Group (International) Pty Limited [2003] NSWCA 84
WJ Green & Co (1984) Pty Limited v Wilden Pty Limited (unreported, 24 April 1997, WASC)
LT King Pty Ltd v Besser [2002] VSC 354
National Mutual Life Assn of Australasia v Chris Poulson Insurance Agencies Pty Ltd (1998) 8 Tas R 123
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Webster v Lampard (1993) 177 CLR 598
Yang v Hypec Electronics Pty Ltd (in liq) [2003] NSWCA 181PARTIES: Augment Communications…
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Details
- Case
- [2008] NSWDC 251
- Decision Date
CaseChat Overview and Summary
Augment Communications Pty Limited (In Liquidation) was the plaintiff in a case against Sedgwick, and the dispute reached the Federal Court of Australia. The plaintiff sought a costs order against non-parties, who were solicitors that had acted for the unsuccessful plaintiff and a former director in the principal proceedings. The plaintiff alleged that the non-parties made misleading and deceptive representations, which the non-parties and the party they represented were said to have made. The legal issues before the court were whether the remedies claimed for costs, based on Part V of the Trade Practices Act, 1974, were justiciable or triable issues properly raised in connection with a motion for costs against non-parties following the conclusion of the principal proceedings. Additionally, the court had to determine whether the points of claim should be struck out for being frivolous, vexatious, disclosing no reasonable cause of action, having a tendency to cause prejudice, embarrassment, or delay in the conclusion of the proceedings, and amounting to a contrivance and abuse of the process of the court.
The court held that the points of claim seeking to rely on alleged representations made by non-parties and claimed to be in breach of the Trade Practices Act, 1974, were not justiciable or triable issues properly raised in connection with a motion for costs against non-parties following the conclusion of the principal proceedings. The court found that the non-parties were not parties to the proceedings and, as such, could not be held liable for costs. Furthermore, the court held that the points of claim were frivolous, vexatious, and disclosed no reasonable cause of action. The court also found that the points of claim had a tendency to cause prejudice, embarrassment, or delay in the conclusion of the proceedings and amounted to a contrivance and abuse of the process of the court.
Consequently, the court struck out the points of claim seeking to rely on alleged representations made by non-parties and claimed to be in breach of the Trade Practices Act, 1974. The court also ordered the First Defendant/Respondent to the first motion to pay the Applicant's costs of the second motion. This decision highlights the importance of ensuring that costs motions are properly framed and that the parties seeking costs have a valid legal basis for doing so. The court's decision also serves as a reminder that non-parties cannot be held liable for costs in proceedings to which they are not a party.
The court held that the points of claim seeking to rely on alleged representations made by non-parties and claimed to be in breach of the Trade Practices Act, 1974, were not justiciable or triable issues properly raised in connection with a motion for costs against non-parties following the conclusion of the principal proceedings. The court found that the non-parties were not parties to the proceedings and, as such, could not be held liable for costs. Furthermore, the court held that the points of claim were frivolous, vexatious, and disclosed no reasonable cause of action. The court also found that the points of claim had a tendency to cause prejudice, embarrassment, or delay in the conclusion of the proceedings and amounted to a contrivance and abuse of the process of the court.
Consequently, the court struck out the points of claim seeking to rely on alleged representations made by non-parties and claimed to be in breach of the Trade Practices Act, 1974. The court also ordered the First Defendant/Respondent to the first motion to pay the Applicant's costs of the second motion. This decision highlights the importance of ensuring that costs motions are properly framed and that the parties seeking costs have a valid legal basis for doing so. The court's decision also serves as a reminder that non-parties cannot be held liable for costs in proceedings to which they are not a party.
Orders
Orders of the court
1. The points of claim seeking to rely on alleged representations made by non-parties and claimed to be in breach of the Trade Practices Act, 1944 (Cwth) are struck out. 2. The First Defendant / Respondent to the first motion is ordered to pay the Applicant's costs of the second motion.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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