| SUPREME COURT OF VICTORIA | |
| COMMERCIAL & EQUITY DIVISION | Not Restricted |
CORPORATIONS LIST
No. 8014 of 1999
| ALEKSANDRA CZERWINSKI | Applicant |
| v | |
| SYRENA ROYAL PTY LTD (ACN 064 682 784) | Respondent |
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JUDGE: | Warren J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March and 7 April 2000 | |
DATE OF JUDGMENT: | 12 April 2000 | |
CASE MAY BE CITED AS: | Czerwinski v Syrena Royal Pty Ltd (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 135 | |
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Costs – unsuccessful application under Corporations Law, s.247A – lack of genuine purpose – statutory power sought to be used to overcome a claim for legal professional privilege in related proceedings – whether costs on a solicitor/client basis.
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APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr R.J. Rosenberg | McGrath Carey and Katz |
| For the Respondent | Mr D. Collins | Coadys |
HER HONOUR:
On 7 April I delivered judgment dismissing an application brought by the plaintiff seeking access to records of the company, Syrena Royal Pty Ltd pursuant to s.247A of the Corporations Law. As a result of the dismissal of the application the respondent seeks an order that the applicant's costs be paid on a solicitor/client basis. Order 63 Rule 28 of the Supreme Court Rules provides that costs are to be taxed on a party/party basis, a solicitor/client basis or such other basis as the court may direct. Rule 30 provides for costs on a solicitor/client basis. Otherwise, Rule 31 provides that except as provided by the Rules or any order of the court costs are to be taxed on a party and party basis.
It is a well established principle that the ordinary rule is that in litigation where a court orders costs to be paid by one party to another party the usual order is for payment of such costs on a party and party basis: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 230 and 232; Re Wilcox, ex p. Venture Industries Pty Ltd & ors (1996) 141 ALR 727. However, the discretion of the court to order costs and the basis for the making of such an order is always "absolute and unfettered" and a court may depart from the usual practice in the course of exercising the judicial discretion: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 400; Re Wilcox, supra.
A review of the authorities reveals that there are a number of grounds whereby the court in the exercise of the discretion should award solicitor and client costs. These grounds may be briefly set out as follows:
1.Where the bringing of the application was high handed: AGC Limited v De Jager (1984) VR 483, 502.
2.If the application had no chance of success: Colgate-Palmolive Company v Cussons Pty Ltd, supra, 231.
3.If the application was hopeless: J. Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA Branch) (No. 2) (1993) 46 IR 301, 303.
4.If the application was unnecessary: Regata Developments Pty…
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- Case
- [2000] VSC 135
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the defendant's application for costs under section 247A was made with a genuine purpose. The court had to consider whether the statutory power was being misused to circumvent the plaintiff's claim for legal professional privilege. Furthermore, the court examined whether the costs should be awarded on a solicitor/client basis, as requested by the plaintiff.
The court held that the defendant's application for costs was not made with a genuine purpose. It found that the primary intention behind the application was to challenge the plaintiff's claim for legal professional privilege rather than seeking a fair allocation of costs. Consequently, the court dismissed the defendant's application and awarded costs to the plaintiff on a solicitor/client basis, as requested.
The court's decision underscores the importance of the genuine purpose requirement in applications for costs under section 247A. It emphasises that the statutory power should not be used to undermine other legal principles, such as legal professional privilege. The outcome ensures that parties do not exploit the cost provisions to achieve tactical advantages in litigation.
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