Brambles Australia Ltd v Kemsley Pty Ltd

[2000] VSC 384

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 6475 of 2000

BRAMBLES AUSTRALIA LTD. & OTHERS	Plaintiffs
v.
KEMSLEY PTY. LTD.	Defendant

---

JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 AUGUST 2000
DATE OF JUDGMENT:	30 AUGUST 2000
CASE MAY BE CITED AS:	BRAMBLES AUSTRALIA LTD. & ORS. v. KEMSLEY PTY. LTD.
MEDIUM NEUTRAL CITATION:	[2000] VSC 384

---

CATCHWORDS:      Costs of application for Mareva Injunction subsequently dissolved – Reasonableness of application – Non-disclosure.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. S. Wilmoth	S.R. Campbell
For the Defendant	Mr. J.L. Evans	Deacon

HIS HONOUR:

1           By consent of the parties, I order that:

1. The proceeding, in so far as it concerns the claims of the following plaintiffs, be transferred to the Magistrates' Court at Melbourne pursuant to s.30 of the Courts (Case Transfer) Act 1991:

(a)       Brambles Australia limited (ACN 000 164 938);

(b)      Accurate Roof Trusses Pty Ltd (ACN 006 504 285);

(c)       Ace Hire Australia Pty Ltd (ACN 070 798 917);

(d)      Cityside Glass Pty Ltd (ACN 082 472 893);

(e)       Tara Building Services Pty Ltd (ACN 007 217 165).

2. The proceeding, in so far as it concerns the claims of the following plaintiffs, be stayed pursuant to s.57(2) of the Domestic Building Contracts Act 1995:

(a)       ATC Concrete Constructions Pty Ltd (ACN 093 585 212);

(b)      AJ & BJ Metal Roofing (a firm);

(c)       Australian Precast Pty Ltd (ACN 006 504 285);

(d)      B&B Steel Pty Ltd ((ACN 004 753 968);

(e)       Motag Waterproofing Pty Ltd (ACN 051 859 459);

(f)       First Mueller Proprietary Limited (ACN 004 890 377).

2           The only matter left for my determination in this case is the question as to who should pay the costs of the application.

3           While counsel for the defendant conceded that the plaintiffs to the proceeding have strong claims against the defendant for the monies they allege are still outstanding in respect of the work done by them, or the materials supplied by them in respect of the defendant's building project at 2 Broom Street, Clifton Hill, he contended that they should not have been granted the interim Mareva injunction as there is no evidence that, unless the defendant was restrained, it would have dissipated its assets and, further, that in obtaining the interim injunction the plaintiffs were guilty of serious non-disclosure.  In those circumstances, as the Mareva injunction has now been dissolved, counsel for the defendant contended that the plaintiffs should be required to pay the defendant's costs of the application.

4           The non-disclosure relied upon relates to letters written by the defendant to some of the plaintiffs on 4 August last whereby it told those contractors or suppliers that it was seeking legal advice in relation to a number of matters concerning the project, including any liability it might have to the subcontractors, and sought copies of documentation in respect of their claims.

5           In my opinion, that correspondence would have had little or no bearing on the fate of the plaintiffs' application.  The fact of the matter is that the defendant was aware of the monies being claimed by the subcontractors and suppliers at the latest by or on about 20 June.  It had not disputed the actual nature of the work they had done or the materials they had supplied, let alone paid for the work, or the materials.  The defendant received the proceeds of the sale of the last unit on 24 July 2000 and, as confirmation of the plaintiffs' fears, had dispersed the bulk of the monies it had received by the time the Mareva injunction was granted on 16 August.  One has the uneasy feeling in this case that the unfortunate plaintiffs will now be left lamenting through no fault of their own.

6 In my opinion, the plaintiffs were quite justified in making the application to the court they did that day. Even though, in the events that have transpired, many of the plaintiffs' actions in this court are now stayed by virtue of the provisions of s.57 of the Domestic Building Contracts Act 1995, and the remainder transferred to the Magistrates' Court, I consider that the appropriate order to make in respect of the costs of this application is that the parties bear their and its own costs, and I so order.

---