Conlan v Adams
[2008] WASCA 61 (S)
CONLAN v ADAMS [2008] WASCA 61 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 61 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:42/2006 | 23 NOVEMBER 2007 | |
| Coram: | McLURE JA BUSS JA NEWNES AJA | 16/03/08 | |
| 1/04/08 | |||
| 7 | Judgment 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
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
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 of backdating the order was to explain and justify the $200,000 plus GST already received pursuant to the order made by the Master and the intent was not 'to seek interest through the backdoor'. Both parties agree that the relevant order made by the Master should be set aside.
3 Unless otherwise ordered, a judgment or order of this court takes effect from the day on which it is pronounced: O 42 r 2 of the Rules of the Supreme 1971 (WA); Smolarek v Liwszyc [2006] WASCA 50 (S). Interest is payable on the judgment sum from the date of the judgment: Civil Judgments Enforcement Act 2004 (WA) s 8. It is appropriate to preserve the status quo in relation to the allowance of $200,000 plus GST made by the Master but not otherwise backdate the order. Accordingly, order 4 should read:
In accordance with the interlocutory process dated 12 January 2004 in proceedings COR 131 of 1999, the remuneration of Mark Anthony Conlan as liquidator of Rowena Nominees Pty Ltd (Receiver and Manager Appointed) (In Liquidation) (ACN 008 818 273) ('appellant') for the period 21 July 1999 to 31 August 2003 be allowed in the sum of:
(a) $200,000 and GST thereon with effect from 30 March 2006; plus
(b) $397,971.18 less
(i) the amount of $487.70 claimed for the Karri Oak litigation; and
(ii) the total of the amounts disallowed pursuant to Orders 5 - 8 hereof ('Amounts Disallowed'); plus
(c) the GST applicable to the net amount in (b).
4 Secondly, the respondents object to the appellant's claim for indemnity costs. This court was critical of the presentation and conduct by the parties of their cases below which also impeded the efficient
(Page 5)
- disposal of the appeal. We would decline the appellant's application for indemnity costs.
5 Thirdly, the respondents object to the appellant's claim for a further interim payment pending the determination of the final amount. A further interim payment is justified by the very significant delays to date.
6 Fourthly, the respondents object to the request for a certificate for the cost of the transcript. The opposition was put on the basis that it was the cost of the appeal transcript. The application relates to the cost of the transcript of the proceedings before the Master which in the circumstances was appropriately incurred.
7 Finally, the respondents seek an order that their costs of the appeal be taxed and paid out of the trust fund. A similar order was made in relation to the proceedings before the Master. There is no challenge to that order notwithstanding the appellant's success in the appeal. The creditors having rejected the appellant's claim for remuneration, it is appropriate that there be no challenge to that order. There being no suggestion the respondents acted unreasonably in defending the appeal, we would order that the respondents' taxed costs of the appeal be paid from the trust funds.
8 Accordingly, the court hereby orders that:
1. The appeal be allowed.
2. The Notice of Contention be dismissed.
3. Paragraph 1 of the order made by Master Sanderson on 30 March 2006 in proceeding COR 131 of 1999 be set aside.
4. In accordance with the interlocutory process dated 12 January 2004 in proceedings COR 131 of 1999, the remuneration of Mark Anthony Conlan as liquidator of Rowena Nominees Pty Ltd (Receiver and Manager appointed) (In Liquidation) (ACN 008 818 273) ('appellant') for the period 21 July 1999 to 31 August 2003 be allowed in the sum of:
(a) $200,000 and GST thereon with effect from 30 March 2006; plus
(b) $397,971.18 less
(i) the amount of $487.70 claimed for the Karri Oak litigation; less
- (ii) the total of the amounts disallowed pursuant to Orders 5 - 8 hereof ('Amounts Disallowed'); plus
(c) the GST applicable to the net amount in (b).
- 5. Within 21 days the respondents file and serve on the appellant a notice identifying which of the objections in the respondents' Schedules of Objections relate to the following categories of work for which remuneration is disallowed ('Disallowed Categories'):
(a) costs for negotiating the funding arrangement for the provision of 'Services' (as defined in cl 1 of the services contract between the appellant and the Finance Brokers Supervisory Board dated 29 July 1999) as supervisor;
(b) costs for seeking and obtaining payment for the provision of the Services from time to time;
(c) costs for seeking funding arrangements from the Government of Western Australia ('GWA') for proposed litigation which fell outside the definition of Services; and
(d) costs for seeking and obtaining payment for the litigation that GWA agreed to fund.
6. Within 21 days of being served with the last of the notices served pursuant to order 5, the appellant file and serve on the respondents a notice identifying, in relation to each objection notified by the respondents pursuant to order 5, whether or not it agrees that the objection wholly relates to work within the Disallowed Categories.
7. If the appellant agrees that an objection wholly relates to work within the Disallowed Categories, the remuneration for the relevant work is to be disallowed.
8. If the appellant disputes that an objection wholly relates to work within the Disallowed Categories, the dispute is to be referred to the taxing master for determination.
9. The appellant's and respondents' costs of and incidental to the resolution of any Amounts Disallowed be reserved to the taxing master determining any dispute or, otherwise, to a Master.
10. By way of interim payment pending finalisation of the appellant's remuneration application, the appellant be allowed the sum of $200,000 plus GST (additional to the sum of $200,000 plus GST already paid to it). Following final determination of the remuneration application, the appellant may draw the balance of the amount to which he is entitled, or shall forthwith reimburse the
- Fund the subject of proceedings in the Supreme Court of Western Australia CIV 2252 of 2004 (as the case may be).
- 11. The appellant's and the respondents' costs of and incidental to the appeal, including any reserved costs, be taxed without regard to the applicable scales and be paid out of trust moneys forming, or to form, part of the Fund the subject of proceedings in the Supreme Court of Western Australia CIV 2252 of 2004.
12. There be a certificate for the cost of the transcript of the proceedings before the Master.
13. The parties have liberty to apply to a single Justice of Appeal on 48 hours notice.
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