Czerwinski v Syrena Royal Pty Ltd (No 2) - [2000] VSC 135

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

---

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

---

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.

---

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…

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.

Keep reading for free

Create a free CaseChat account to read Czerwinski v Syrena Royal Pty Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] VSC 135
Decision Date: 12 April 2000

CaseChat Overview and Summary

Czerwinski v Syrena Royal Pty Ltd (No 2) is a case where the plaintiff sought to recover legal costs from the defendant under section 247A of the Corporations Law. The dispute arose from the plaintiff's claim for legal professional privilege in related proceedings, which the defendant contested. The Federal Court was tasked with determining the appropriate costs order.

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.

Orders