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
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
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…
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.
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AGLC
Conlan v Adams [2008] WASCA 61 (S)
Case
[2008] WASCA 61 (S)
Decision Date
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.