Australian Securities Commission v Bell
[1996] FCA 19
•2 FEBRUARY 1996
CATCHWORDS
PROCEDURE - costs - whether general rule as to costs should be displaced - respondent wholly successful at hearing - conduct of parties - whether apportionment appropriate.
Ritter v Godfrey (1920) 2 KB 47
AUSTRALIAN SECURITIES COMMISSION v BELL & ORS NO. WAG 3008 OF 1995
JUSTICE R D NICHOLSON
PERTH
2 FEBRUARY 1996
IN THE FEDERAL COURT OF AUSTRALIA ) LIMITED DISTRIBUTION
WESTERN AUSTRALIA DISTRICT REGISTRY )
GENERAL DIVISION ) NO. WAG 3008 OF 1995
B E T W E E N: AUSTRALIAN SECURITIES COMMISSION
Applicant
and
NOEL ANDREW BELL
First Respondent
and
STEVEN ANTONIO LA ROSA
Second respondent
and
CRAIG ALLAN HUGHES
Third Respondent
and
DARREL KEANE BYRNE
Fourth Respondent
and
PARATOO PTY LTD
(ACN 009455387)
Fifth Respondent
and
LAMEEKA PTY LTD
(ACN 009198618)
Sixth Respondent
and
QUINARY HOLDINGS PTY LTD
(ACN 062602484)
Seventh Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER: JUSTICE R D NICHOLSON
DATE OF ORDER: 2 FEBRUARY 1996
WHERE MADE: PERTH
THE COURT ORDERS THAT:
The respondent pay the applicant's costs incurred in relation to the motion dated 4 October 1995 prior to the filing of the defence on 13 October 1995.
The applicant pay the respondent's costs incurred in relation to the motion dated 4 October 1995 on and after the filing of the defence on 13 October 1995.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) LIMITED DISTRIBUTION
WESTERN AUSTRALIA DISTRICT REGISTRY )
GENERAL DIVISION ) NO. WAG 3008 OF 1995
B E T W E E N: AUSTRALIAN SECURITIES COMMISSION
Applicant
and
NOEL ANDREW BELL
First Respondent
and
STEVEN ANTONIO LA ROSA
Second respondent
and
CRAIG ALLAN HUGHES
Third Respondent
and
DARREL KEANE BYRNE
Fourth Respondent
and
PARATOO PTY LTD
(ACN 009455387)
Fifth Respondent
and
LAMEEKA PTY LTD
(ACN 009198618)
Sixth Respondent
and
QUINARY HOLDINGS PTY LTD
(ACN 062602484)
Seventh Respondent
CORAM:JUSTICE R D NICHOLSON
DATE:2 FEBRUARY 1996
PLACE:PERTH
REASONS FOR JUDGMENT
In this matter the applicant brought a motion for judgment against the respondents which was refused for the reasons published by this Court on 21 December 1995. At that time the issue of costs was reserved pending written submissions which I have now had the opportunity to examine.
The ordinary rule as to costs is that a successful defendant will be granted costs "unless there is evidence that the defendant has - (1) brought about the litigation; or (2) has done something connected with the institution or conduct of the suit calculated to occasion unnecessary litigation or expense; or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains": Ritter v Godfrey (1920) 2 KB 47 at 50.
The applicant contends that in this case the respondents by their conduct, in failing to comply with two orders of this Court setting down a date for the filing of the defence and by representations made by the solicitor acting on their behalf that no defence would in fact be filed, made it appropriate for the applicants to pursue the motion for judgment in order to resolve the proceedings. If this submission is correct then the respondents' conduct would contravene the second limb in Ritter v Godfrey (supra). I turn then to consider that submission.
Despite the fact that negotiations were in progress between the parties in an attempt to settle the matter without recourse to trial, the respondents failed to comply with the Court's orders. The delay in the filing of the defence meant that the applicant had no alternative than to file the notice of motion on 4 October 1995 in order to resolve the stalemate. The filing of the notice of motion prompted the respondents to file a defence on 13 October 1995. I therefore accept the applicant's submission in the alternative that the costs prior to the filing of the defence should be borne by the respondents.
However, after the filing of the defence the applicant was on notice that the respondents were intending to defend the action. In addition, the applicant received a letter from the respondents' solicitor on 26 October 1995 expressly stating that the respondents would not enter into a settlement agreement on the proposed terms.
The applicant's submissions have failed to convince me that the ordinary rule as to costs should be displaced in this instance once the defence was filed. As was found at the hearing of the motion, the fact that the applicant filed its amended application on 22 September 1995 precludes it from arguing that the pleadings had been closed for some time. The applicant's submission that the respondents did not seek leave to file their defence after the close of pleadings is not relevant to the costs issue arising from the hearing of the motion.
I would therefore apportion costs so that the costs of the filing of the motion and any costs incurred prior to 13 October 1995 be borne by the respondents. Any costs in relation to the motion after that date should be borne by the applicant.
I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.
Associate:
Date:
APPEARANCES BY SUBMISSION
Counsel for the Applicant: Mr D J Williams
Solicitors for the Applicant: Australian Securities Commission
Counsel for the Respondent: Mr H Robinson
Solicitors for the Respondent: Haydn Robinson
Date of Judgment: 2 February 1996
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