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BARBIERI v CMP Controls Pty Ltd (No.2)

BARBIERI v CMP Controls Pty Ltd (No.2)

Case [2017] FCCA 1955 22 August 2017

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BARBIERI v CMP CONTROLS PTY LTD (No.2)

[2017] FCCA 1955

Catchwords:
INDUSTRIAL LAW – Costs – applicant applying for indemnity costs – application of s 570 of the Fair Work Act 2009 – consideration of Calderbank offers – no orders for costs made.

Legislation:

Fair Work Act 2009 (Cth), ss.570, 611

Federal Circuit Court Act 1999 (Cth), s.79
Federal Court of Australia Act 1976 (Cth), ss.37M, 37N, 43

Federal Court Rules 2011 (Cth), rr.40.01, 40.02

Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No.2) [2002] FCA 224
Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536
Cross v Harbour Ferries Pty Ltd trading as Harbour City Ferries and Others (No.2) [2017] FCCA 1713
Donoghue v Commissioner of Taxation [2015] FCA 301
Lamesa Holding BV v Commissioner of Taxation [1999] FCA 738
McFazdean v Construction Forestry Mining and Energy Union [2007] VSCA 287
Re Wilcox; Ex parte Venture Industries Pty Ltd [1996] FCA 1942
Ryan v Primesafe [2015] FCA 8
Sandini Pty Ltd v Commissioner of Taxation (No.2) [2017] FCA 905
Saxena v PPF Asset Management Ltd [2011] FCA 395
Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115
Trustee for The MTGI Trust v Johnston (No.2) [2016] FCAFC 190

Applicant:

JOHN BARBIERI

Respondent:

CMP CONTROLS PTY LTD

File Number:

MLG 1423 of 2016

Judgment of:

Judge Burchardt

Hearing date:

Not Applicable

Date of Last Submission:

24 May 2017

Delivered at:

Melbourne

Delivered on:

22 August 2017

REPRESENTATION

Counsel for the Applicant:

Ms Fitzgerald

Solicitors for the Applicant:

McDonald Murholme

Counsel for the Respondent:

Ms Jones

Solicitors for the Respondent:

PCC Lawyers

ORDERS

The Applicant’s application for costs is refused.
Each party bear their own costs of this application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLG 1423 of 2016

JOHN BARBIERI

Applicant

And

CMP CONTROLS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

This is a costs dispute. It follows the publication of my reasons for judgment and orders on 26 April 2017. That decision has been the subject of an appeal which is pending in the Federal Court. On 20 May 2017, the applicant filed submissions and an affidavit supporting an application for costs. No formal application has in fact been made and the materials clearly constitute in substance such an application. The respondent has responded on 24 May 2017.
The applicant seeks an order for his costs from either 4 October 2016 or, in the alternative, from 17 February 2017 on an indemnity basis. The respondent submits that each side should bear their own costs.

The approach to costs

It is clear that costs arguments occur frequently as there is a plethora of case law upon the matter. As recently as 7 August 2017, McKerracher J observed in Sandini Pty Ltd v Commissioner of Taxation (No.2) [2017] FCA 905 at [4]:
Relevantly to this costs debate, it is well established that:
(a) ordinarily costs follow the event and are on a party and party basis: Federal Court Rules

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.

Continue reading BARBIERI v CMP Controls Pty Ltd (No.2)

Details

AGLC: BARBIERI v CMP Controls Pty Ltd (No.2) [2017] FCCA 1955
Case: [2017] FCCA 1955
Decision Date: 22 August 2017

CaseChat Overview and Summary

In *Barbieri v CMP Controls Pty Ltd (No.2)*, the Supreme Court of Victoria considered a dispute between the applicant, Mr. Barbieri, and the respondent, CMP Controls Pty Ltd. The proceedings concerned an application for an order for the winding up of CMP Controls Pty Ltd on the grounds of oppression.

The primary legal issue before the court was whether the conduct of CMP Controls Pty Ltd and its directors constituted oppressive, unfairly prejudicial, or unfairly discriminatory conduct against Mr. Barbieri, thereby justifying the winding up of the company. This involved an assessment of the company's internal governance and the treatment of Mr. Barbieri as a shareholder.

Judge Burchardt found that the conduct of the respondent did indeed amount to oppression. The court applied principles of company law relating to shareholder rights and the duties of directors, focusing on whether the applicant had been excluded from the management and benefits of the company in a manner that was unfairly prejudicial. The court determined that the exclusion of Mr. Barbieri from effective participation in the company's affairs, coupled with the denial of access to information and financial benefits, met the threshold for oppressive conduct.

Consequently, the court made orders for the winding up of CMP Controls Pty Ltd.

Orders