Conlan v Adams

Case [2008] WASCA 61 (S)


CONLAN v ADAMS [2008] WASCA 61 (S)



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2008] WASCA 61 (S)
THE COURT OF APPEAL (WA)
Case No:CACV:42/200623 NOVEMBER 2007
Coram:McLURE JA
BUSS JA
NEWNES AJA
16/03/08
1/04/08
7Judgment Part:1 of 1
Result: Orders made
B
PDF Version
Parties:MARK ANTHONY CONLAN as Liquidator of ROWENA NOMINEES PTY LTD (Receiver and Manager Appointed) (In Liquidation) (ACN 008 818 273)
K F & A C ADAMS & ORS
KARRI OAK LTD (In Liquidation) (ACN 079 845 766)

Catchwords:

Orders
Application to backdate
Costs
Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 8
Rules of the Supreme Court 1971 (WA), O 42 r 2

Case References:

Conlan v Adam [2008] WASCA 61
Smolarek v Liwszyc [2006] WASCA 50 (S)


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CONLAN v ADAMS [2008] WASCA 61 (S) CORAM : McLURE JA
    BUSS JA
    NEWNES AJA
HEARD : 23 NOVEMBER 2007 DELIVERED : 17 MARCH 2008 SUPPLEMENTARY
DECISION : 1 APRIL 2008 FILE NO/S : CACV 42 of 2006 BETWEEN : MARK ANTHONY CONLAN as Liquidator of ROWENA NOMINEES PTY LTD (Receiver and Manager Appointed) (In Liquidation) (ACN 008 818 273)
    Appellant

    AND

    K F & A C ADAMS & ORS
    First Respondents

    KARRI OAK LTD (In Liquidation) (ACN 079 845 766)
    Second Respondent



(Page 2)

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION -v- ROWENA NOMINEES PTY LTD (IN LIQ) (RECEIVER AND MANAGER APPOINTED) (SUPERVISOR APPOINTED) [2006] WASC 36

File No : COR 131 of 1999


Catchwords:

Orders - Application to backdate - Costs - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 8


Rules of the Supreme Court 1971 (WA), O 42 r 2

Result:

Orders made

Category: B


Representation:

Counsel:


    Appellant : Mr R J Price & Mr L L Proksch
    First Respondents : Mr D H Solomon
    Second Respondent : Mr K J De Kerloy

Solicitors:

    Appellant : Clayton Utz
    First Respondents : Solomon Brothers
    Second Respondent : Freehills

(Page 3)

Case(s) referred to in judgment(s):

Conlan v Adam [2008] WASCA 61
Smolarek v Liwszyc [2006] WASCA 50 (S)


(Page 4)

1 JUDGMENT OF THE COURT: The court handed down its reasons for judgment in this matter on 17 March 2008 (Conlan v Adam [2008] WASCA 61). The respondents objected to a number of the orders sought by the appellant in his Minute of Proposed Orders.

2 First, the respondents objected to proposed order 4 which provided that the total remuneration be allowed with effect from 30 March 2006, being the date of the orders the subject of the appeal. The respondents' objection was based on the fact that interest would be payable from that date. Counsel for the appellant informed the court that the purpose…

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Conlan v Adams [2008] WASCA 61 (S)
Case
[2008] WASCA 61 (S)
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CaseChat Overview and Summary

The Supreme Court of Western Australia was presented with an appeal from the decision of Master Sanderson, who was acting in his capacity as a Master of the Supreme Court, in the case of Conlan v Adams. The appellant, Mark Anthony Conlan, acting as liquidator of Rowena Nominees Pty Ltd, sought to challenge the Master's decision on the remuneration he was entitled to for his services. The respondents, K F & A C Adams and Karri Oak Ltd, opposed the appellant's claims and argued against the proposed orders.

The primary legal issue before the court was whether the appellant was entitled to the proposed orders, which included the backdating of his remuneration, indemnity costs, a further interim payment, and a certificate for the cost of the transcript. The court also needed to determine whether the respondents' costs of the appeal should be taxed and paid out of the trust fund.

In its judgment, the court found that while the appellant was entitled to his remuneration, the backdating of the order was not appropriate as it would result in the payment of interest from the date of the order. The court also declined the appellant's application for indemnity costs due to the unsatisfactory presentation and conduct of the case by both parties. However, the court did allow a further interim payment to the appellant due to the significant delays in the case. The court also allowed the request for a certificate for the cost of the transcript of the proceedings before the Master, as it was appropriately incurred. Lastly, the court ordered that the respondents' taxed costs of the appeal be paid from the trust funds, as there was no challenge to that order.

The court allowed the appeal and set aside the order made by Master Sanderson on 30 March 2006. The court allowed the remuneration of the appellant, with specific conditions on the backdating of the order, disallowed certain costs, allowed a further interim payment, and ordered that the respondents' taxed costs of the appeal be paid from the trust funds.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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