Brian Neville Mayfield & Marlene Theresa Mayfield (ATF B & M Mayfield Superannuation Fund) v P & B Corporation Pty Ltd (ATF North Cape Development Trust)
[2015] WASC 213 (S)
•15 JUNE 2016
BRIAN NEVILLE MAYFIELD & MARLENE THERESA MAYFIELD (ATF B & M Mayfield Superannuation Fund) -v- P & B CORPORATION PTY LTD (ATF North Cape Development Trust) [2015] WASC 213 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 213 (S) | |
| Case No: | CIV:2796/2013 | ON THE PAPERS | |
| Coram: | ALLANSON J | 15/06/16 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application granted in part Costs of first to fifth defendants reserved Plaintiffs to pay costs of the sixth defendant's strike out application | ||
| B | |||
| PDF Version |
| Parties: | BRIAN NEVILLE MAYFIELD & MARLENE THERESA MAYFIELD (ATF B & M Mayfield Superannuation Fund) RICHARD COBLEY & ROBYN COBLEY (ATF R & R Cobley Family Super Fund) KENNETH MAXWELL DOWNES & LYNETTE LORRAINE GRIEVES PETER DAVID HORWOOD AND JILL HORWOOD DISCOVERY III PTY LTD FORMERLY LATITUDE FISHERIES PTY LTD (ATF Boschetti Superannuation Fund) MURRAY RONALD HORAK & ASTRID JEANETTE MARQUERITE HORAK MARTIN RYAN HORAK & URIEL GERALDINE DEKALBERMATTEN P & B CORPORATION PTY LTD (ATF North Cape Development Trust) BARRY COLIN HUMFREY PETER FRANCIS BELL REGIONAL WA PTY LTD FORMERLY P & B SERVICES PTY LTD KENESTA PTY LTD THOMSON SMSF WARRANT PTY LTD JOHN SCOTT THOMSON BIRDANCO NOMINEES PTY LTD (T/As RSM Bird Cameron) |
Catchwords: | Practice and procedure Costs Costs of interlocutory application Strike out application Where party successful in part Turns on own facts |
Legislation: | Supreme Court Act 1935 (WA), s 37(1) Supreme Court Rules 1971 (WA), O 66 r 1(1) |
Case References: | Amaca Pty Ltd v Moss [2007] WASCA 162 (S) Brian Neville Mayfield & Marlene Theresa Mayfield (ATF B & M Mayfield Superannuation Fund) v P & B Corporation Pty Ltd (ATF North Cape Development Trust) [2015] WASC 213 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiffs
RICHARD COBLEY & ROBYN COBLEY (ATF R & R Cobley Family Super Fund)
Second Plaintiffs
KENNETH MAXWELL DOWNES & LYNETTE LORRAINE GRIEVES
Third Plaintiffs
PETER DAVID HORWOOD AND JILL HORWOOD
Fourth Plaintiffs
DISCOVERY III PTY LTD FORMERLY LATITUDE FISHERIES PTY LTD (ATF Boschetti Superannuation Fund)
Fifth Plaintiff
MURRAY RONALD HORAK & ASTRID JEANETTE MARQUERITE HORAK
Sixth Plaintiffs
MARTIN RYAN HORAK & URIEL GERALDINE DEKALBERMATTEN
Seventh Plaintiffs
AND
P & B CORPORATION PTY LTD (ATF North Cape Development Trust)
First Defendant
BARRY COLIN HUMFREY
Second Defendant
PETER FRANCIS BELL
Third Defendant
REGIONAL WA PTY LTD FORMERLY P & B SERVICES PTY LTD
Fourth Defendant
KENESTA PTY LTD
Fifth Defendant
THOMSON SMSF WARRANT PTY LTD
Sixth Defendant
JOHN SCOTT THOMSON
Seventh Defendant
BIRDANCO NOMINEES PTY LTD (T/As RSM Bird Cameron)
Eighth Defendant
Catchwords:
Practice and procedure - Costs - Costs of interlocutory application - Strike out application - Where party successful in part - Turns on own facts
Legislation:
Supreme Court Act 1935 (WA), s 37(1)
Supreme Court Rules 1971 (WA), O 66 r 1(1)
Result:
Application granted in part
Costs of first to fifth defendants reserved
Plaintiffs to pay costs of the sixth defendant's strike out application
Category: B
Representation:
Counsel:
First Plaintiffs : No appearance
Second Plaintiffs : No appearance
Third Plaintiffs : No appearance
Fourth Plaintiffs : No appearance
Fifth Plaintiff : No appearance
Sixth Plaintiffs : No appearance
Seventh Plaintiffs : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Solicitors:
First Plaintiffs : Bennett + Co
Second Plaintiffs : Bennett + Co
Third Plaintiffs : Bennett + Co
Fourth Plaintiffs : Bennett + Co
Fifth Plaintiff : Bennett + Co
Sixth Plaintiffs : Bennett + Co
Seventh Plaintiffs : Bennett + Co
First Defendant : Solomon Brothers
Second Defendant : Solomon Brothers
Third Defendant : Solomon Brothers
Fourth Defendant : Solomon Brothers
Fifth Defendant : Solomon Brothers
Sixth Defendant : Solomon Brothers
Seventh Defendant : Hammond King Touyz
Eighth Defendant : Hammond King Touyz
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Moss [2007] WASCA 162 (S)
Brian Neville Mayfield & Marlene Theresa Mayfield (ATF B & M Mayfield Superannuation Fund) v P & B Corporation Pty Ltd (ATF North Cape Development Trust) [2015] WASC 213
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261
1 ALLANSON J: On 12 June 2015, I delivered reasons on an application by the first to sixth defendants to strike out allegations pleaded against them in the third amended statement of claim. The statement of claim was struck out in part. The defendants were also given leave to make a further application to strike out if, after discovery and inspection, the plaintiffs cannot or do not plead further material facts or give further particulars to support certain allegations.
2 The plaintiffs and the first to sixth defendants now seek their costs of the strike out application.
3 The position of the sixth defendant is easily resolved. The pleas against the sixth defendant were wholly struck out, and the plaintiffs have not re-pleaded against it. It is not disputed that the sixth defendant should have its costs of the application to be taxed if not agreed.
4 The issue of costs between the plaintiffs and the other defendants is more complicated. First, each side in the dispute enjoyed some measure of success. Second, the first to sixth defendants had common representation, and one outline of submissions was filed. In one instance, a plea against multiple defendants was struck out against only some of them. Third, the amended statement of claim that the plaintiffs filed following the strike out is substantially different in several respects. Most importantly, the nature of the damage claimed has been affected by subsequent action taken by the bank.
5 The costs issues between the plaintiffs and the seventh and eighth defendants are dealt with in separate reasons, as the costs relate also to a second application between the plaintiffs and those defendants only.
The strike out application
6 The application was quite limited.
7 The first plea challenged was the plea in pars 30 and 55 that the first defendant, alternatively the second and third defendants, was obliged to constitute and maintain or cause the unit holders to constitute and maintain, a management committee. The defendants alleged there was no basis for that pleaded obligation, and it was directly inconsistent with the terms of the Trust Deed. The defendants submitted that the pleas in pars 30 and 55 disclosed no reasonable cause of action, and that they were embarrassing.
8 I did not accept the defendants' submission in full, striking out the pleas in pars 30 and 55, and pleas consequent on those paragraphs, only to the extent that they pleaded an obligation on the second and third defendants.
9 The second challenge was to the claims against the sixth defendant which were successful.
10 The third challenge was to the plea regarding the redemption of units that had been held by one of the original unit holders (Hospitality Pty Ltd). The defendants challenged the plea that the first defendant had redeemed those units for an amount greater than the 'Redemption Value' of those units, calculated in accordance with the Trust Deed. The defendants submitted that the plaintiffs had not pleaded material facts capable of supporting that conclusion. With regard to this part of the plea, I accepted that it was currently inadequate, but did not strike it out. Rather I held that the defendants should have leave to make a further application to strike out if, after discovery and inspection, the plaintiffs cannot or do not plead further material facts or give further particulars to support their allegations.
11 Finally, the defendants challenged the plea that the second and third defendants knowingly participated in the breaches of trust. I did not accept that the plea should be struck out and that the question of the liability of the directors of a trust company for breaches by the company should be determined summarily in that manner.
12 The reasons of the court on the application are at Brian Neville Mayfield & Marlene Theresa Mayfield (ATF B & M Mayfield Superannuation Fund) v P & B Corporation Pty Ltd (ATF North Cape Development Trust) [2015] WASC 213.
The costs of the application
13 Putting aside the position of the sixth defendant, the plaintiffs and the defendants each submit that they were the substantially successful party and should have all or part of the costs of the application.
14 There is no dispute regarding the principles to be applied.
15 Costs of and incidental to all proceedings in court are in the discretion of the court: Supreme Court Act 1935 (WA) s 37(1). The discretion must be exercised judicially. The Supreme Court Rules 1971 (WA) in O 66 r 1(1), state the general rule that costs go to the successful party. There are many qualifications to that general rule. In particular, where a party who has been generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs the court may order such party to pay the costs of such issue or issues: O 66 r 1(3).
16 Where there is a mixed outcome, the apportionment of costs is very much a matter of impression and broad evaluation. Mathematical precision is illusory: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261; Amaca Pty Ltd v Moss [2007] WASCA 162 (S) [6].
17 The defendants submit that there should be no apportionment and that they were generally successful in striking out a number of the allegations against them (or against some of them). As an alternative, the defendants submit that the costs of the application 'insofar as it sought to strike-out the allegations regarding the redemption of Hospitality Pty Ltd's units' should be reserved until it can be seen whether the plaintiff can plead an arguable claim. Otherwise, any apportionment should involve a reduction in the costs awarded to the defendants, not an award in favour of the plaintiffs.
18 The plaintiffs submit that the application was substantially unsuccessful, and the defendants should pay the plaintiffs' costs, or most of them.
19 Because of the time that has passed, I have re-read the transcript of the hearing, as well as the written submissions. That is not necessarily a true guide to either the significance or the time devoted to a particular issue. A matter may take little time in oral submissions because time in thought and preparation has permitted it to be presented concisely and clearly. But, as a matter of impression, the argument directed to the redemption of the Hospitality Pty Ltd units was an important part of the defendants' quite concise submissions, particularly when the submissions regarding the sixth defendant are put to one side.
20 I agree that the costs of that part of the application should be reserved until the fate of that plea, following discovery, is resolved. If the plaintiffs cannot plead facts to substantiate the plea it should not proceed to trial. I would, however, go further than the defendants. The question of whether the defendants or the plaintiffs have substantially succeeded on the application as a whole cannot be properly decided without knowing whether that plea will stand.
21 For that reason, other than the costs of the sixth defendant, which are not contested, the costs of the strike out application should be reserved until that time.
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