Bank of Western Australia Ltd v Tannous (No. 5)

[2013] NSWSC 408

Supreme Court

New South Wales

Medium Neutral Citation:

Bank of Western Australia Ltd v Tannous (No. 5) [2013] NSWSC 408

Hearing dates:

23 April 2013

Decision date:

23 April 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. On the Notice of Motion filed by FMA on 26 June 2012, FMA is to pay the Second Defendant's costs.

2. On the Notice of Motion filed by FMA on 16 October 2012, FMA is to pay thirty per cent of the Second Defendant's costs.

3. There should be no costs in relation to the Second Defendant's Amended Motion filed 27 September 2012.

Catchwords:

PROCEDURE - costs - no question of principle

Cases Cited:

Bank of Western Australia Ltd v Tannous [2010] NSWSC 1319
Bank of Western Australia Limited v Tannous [2012] NSWSC 559
Bank of Western Australia Ltd v Tannous (No 4) [2013] NSWSC 182

Category:

Interlocutory applications

Parties:

Bank of Western Australia Ltd (Plaintiff)
Arthur Tannous (First Defendant)
Emily Tannous (also known as Emiley Tannous) (Second Defendant/Cross-Claimant)
ING Bank (Australia) Limited (First Cross-Defendant to Second Cross-Claim; Third Cross-Defendant to Third Cross-Claim)
Firstfolio Mortgages Australia Pty Ltd (Second Cross-Defendant to First Cross-Claim; Second Cross-Defendant to Third Cross-Claim)
Registrar General of NSW (Second Cross-Defendant to Second Cross-Claim)

Representation:

F Tao (Plaintiff)
J Fernando (Firstfolio Mortgages Australia Pty Ltd)
No appearance (First Defendant)
A Kumar (Second Defendant)
No appearance (Third Defendant)
Henry Davis York (Plaintiff)
Donnelly Lawyers (First Defendant)
Good Legal Lawyers (Second Defendant)
Gadens Lawyers (ING and Firstfolio Mortgages Australia Pty Ltd)
Solicitor for the Registrar General

File Number(s):

2009/292096

Judgment

1. I gave judgment on three Notices of Motion on 13 March 2013: Bank of Western Australia Ltd v Tannous (No 4) [2013] NSWSC 182. One of the Motions by FMA (filed 26 June 2012) was an appeal from Harrison AsJ asserting that Justice Harrison was in error in the view she came to, particularly in relation to Anshun estoppel and abuse of process. FMA was entirely unsuccessful on its Motion by way of appeal.

1. In a second Notice of Motion by FMA (filed 16 October 2012) FMA sought to dismiss, alternatively to strike out, an Amended Fourth Cross-Claim filed by the Second Defendant. This Amended Fourth Cross-Claim contained a large number of causes of action that went beyond what had been contemplated by Harrison AsJ when she gave further leave to the Second Defendant to redraft its cross-claim in her judgment of 29 May 2012: Bank of Western Australia Limited v Tannous [2012] NSWSC 559.

1. When that Motion was heard by me, I determined that the only cause of action the Second Defendant should be able to bring was a claim based on misleading and deceptive conduct because that was the only claim that might be thought to have arisen from the change in the Plaintiff's pleading claiming restitution against each of the Defendants.

1. There was a third Notice of Motion, this one filed by the Second Defendant on 23 July 2012 and amended on 27 September 2012 which asked that I revisit the form of the judgment that I had entered in my judgment of December 2010 (Bank of Western Australia Ltd v Tannous [2010] NSWSC 1319) to remove references to a judgment for cross-defendants and to substitute that the cross-claims be dismissed. I acceded to that Motion, although strictly speaking it was not necessary to do so by reason of the result in the appeal from Harrison AsJ. Nevertheless, the reason that that Motion needed to be brought was a problem arising from my judgment and not by the fault or either of the parties. Although the Second Defendant was successful in having the earlier orders varied I would not order that there be any costs in relation to that Notice of Motion.

1. Although FMA did not succeed in having the Amended Fourth Cross-Claim dismissed it was successful in having a number of the causes of action struck out with leave to re-plead being granted in respect only of the claim for misleading and deceptive conduct. This was because the other causes of action went beyond what was put forward to Harrison AsJ and in respect of which she granted leave to re-plead, and were causes of action that could not be brought by reason of my 2010 judgment.

1. A considerable amount of time was spent at the hearing of the Motions on 12 and 13 November dealing with the individual causes of action and whether or not there was any justification for the bringing of them. In the circumstances, I do not consider that FMA should have to pay all of the costs of the Second Defendant by reason of the fact that it was ultimately successful in not having the Amended Fourth Cross-Claim dismissed entirely.

1. I expressed preliminary views in my judgment of 13 March 2013 in relation to each of the Notices of Motion. The parties have addressed me this morning about those preliminary views. As a result of those submissions I will vary those preliminary views to this extent - ultimately the Second Defendant was successful in being able to maintain a limited form of the Amended Fourth Cross-Claim.

1. Accordingly I make these orders:

(1)   On the Notice of Motion filed by FMA on 26 June 2012, FMA is to pay the Second Defendant's costs.

(2)   On the Notice of Motion filed by FMA on 16 October 2012, FMA is to pay thirty per cent of the Second Defendant's costs.

(3)   There should be no costs in relation to the Second Defendant's Amended Motion filed 27 September 2012.

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Decision last updated: 24 April 2013