Daleport Pty Ltd v Bank of Western Australia Ltd

[2012] NSWCA 402

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Daleport Pty Ltd v Bank of Western Australia Ltd [2012] NSWCA 402

Hearing dates:

6 September 2012

Decision date:

12 December 2012

Before:

Bathurst CJ (at [1]); Barrett JA (at [2]); Sackville AJA (at [15])

Decision:

1. Grant leave to appeal.

2. Appeal allowed.

3. Set aside the orders of Davies J entering summary judgment against Mr Walton.

4. Make no order as to the costs of the proceedings in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - costs - where appellant debtor challenges on appeal an order in fact not made at first instance - and respondent engages without realising that order not made - ultimate realisation by both parties that subject matter lacking - where appellant guarantor challenges interlocutory order below granting summary judgment against him - but guarantor permitted to defend like claims based on allied finance facilities - ultimate acknowledgement by both parties that summary judgment should be set aside - each party seeks its costs - how discretion as to costs should be exercised

Legislation Cited:

Trade Practices Act 1974 (Cth), s 87

Cases Cited:

Wickstead v Browne (1992) 30 NSWLR 1

Category:

Principal judgment

Parties:

Daleport Pty Ltd - First Appellant
Alexander Raymond Walton - Second Appellant
Bank of Western Australia Ltd - Respondent

Representation:

N Obrart - Appellants
A S Bell SC/P J Dowdy - Respondent
Ledger & Co Lawyers - Appellants
Gadens Lawyers - Respondent

File Number(s):

2012/30973

 Decision under appeal 

Citation:

[2011] NSWSC 819

Date of Decision:

2011-07-26 00:00:00

Before:

Davies J

File Number(s):

2008/287869

Judgment

1. BATHURST CJ: I agree with Barrett JA.

1. BARRETT JA: When this matter came before the Court of Appeal on 6 September 2012, Daleport Pty Ltd (a borrower from Bank of Western Australia Ltd) and Mr Walton (a guarantor of Daleport's obligations to the Bank) sought relief in respect of two interlocutory orders made in Common Law Division recovery proceedings brought by the Bank against Daleport and Mr Walton. The application for leave to appeal and, subject to the grant of leave, the appeal itself were heard together on that day.

1. Daleport challenged an interlocutory order which, it said, precluded its raising by way of defence to the Bank's debt claim an entitlement of Daleport, as against the Bank, to monetary compensation pursuant to s 87 of the Trade Practices Act 1974 (Cth) on account of alleged conduct of the Bank prohibited by that Act. Mr Walton challenged an interlocutory order for summary judgment against him as guarantor, contending that there had been a denial of procedural fairness and that he should be allowed to defend.

1. In relation to the first of these matters, this Court pointed out, in the course of the hearing (and counsel for Daleport and Mr Walton accepted), that no order had ever been made so as to preclude the ability of Daleport to assert against the Bank a claim for monetary compensation under s 87 of the Trade Practices Act by way of set-off against whatever Daleport might be found to owe the Bank. While that matter had been the subject of comment in the primary judge's reasons and short minutes provided to his Honour had included such an order, the order was not in fact made.

1. As to the second matter, it became clear that claims against Mr Walton as guarantor of Daleport under facilities other than the facility the subject of the summary judgment against him would proceed to trial on their merits, along with Mr Walton's defences to those claims, so that, on the rationale illustrated by Wickstead v Browne (1992) 30 NSWLR 1, there was ample room for the view that preclusion of his defence concerning the particular facility was premature and entailed an erroneous exercise of the judge's discretion.

1. The upshot was that the Bank ultimately indicated its consent to the following orders:

1, Appeal allowed.

2. Set aside the orders of Davies J entering summary judgment against Mr Walton.

3. Order that the appellants pay the respondents' costs of and incidental to the appeal, such costs to be payable forthwith.

(Necessarily implicit in this is consent also to the granting of leave to appeal.)

1. Daleport and Mr Walton are, needless to say, content for orders 1 and 2 to be made. They oppose order 3 and say that they should be awarded costs.

1. The only issue for decision, therefore, concerns the costs of the application for leave to appeal and the appeal itself.

1. The Bank says that the costs order it seeks (order 3 above) is warranted because the basis for an outcome favourable to Daleport and Mr Walton was never articulated by them and resulted from analysis that emerged in the course of submissions in this Court. For that reason, the Bank contends that the "success" of Daleport and Mr Walton was not of their making and this should be recognised by not only denying them costs but also ordering them to pay the Bank's costs.

1. Daleport and Mr Walton say, in response, that the Bank accepted as valid the basis on which they brought their claims before this Court. They point out that the Bank proceeded on the clear understanding that the primary judge had made an order precluding Daleport's reliance upon a s 87 monetary claim by way of set-off; and that this was so even though, upon analysis, it is seen the judge's negative observations found no expression in the orders actually made. That point is well made. The Bank, in its submissions filed in this Court in advance of the hearing, engaged directly with the submissions of Daleport and Mr Walton on the footing that an order had been made and was in force.

1. It is, to my mind, clear in relation to this aspect that Daleport and Mr Walton took steps to appeal against the non-existent order and the Bank, for its part, took steps to resist that move without having realised that the application for appellate intervention was devoid of subject matter. The misapprehension was mutual.

1. In relation to the second aspect concerning summary judgment against Mr Walton in respect of one facility only, there was no misapprehension of the parties in advance of the hearing. Rather, the position was that exploration of the matter in the course of argument exposed a dimension (the fact that Mr Walton's defences in respect of related claims concerning other facilities were proceeeding) the significance and implications of which were apparently not fully appreciated on either side at any earlier stage.

1. The situation is, in my view, one in which both parties have - albeit unwittingly - come to the Court of Appeal unnecessarily; and that neither realised in advance that that was the case. Had the relevant matters been appreciated by the parties in advance in the way that they were appreciated at the end of the hearing, the very strong likelihood is that Daleport and Mr Walton would never have initiated an appeal in relation to the non-existent order and the Bank would have appreciated the force of (and accommodated) the Wickstead v Browne point in relation to Mr Walton's defence.

1. In those circumstances, I am of the opinion that there should be no order as to the costs in this Court so that each side bears its own costs. The orders I propose are accordingly the following:

1. Grant leave to appeal.

2. Appeal allowed.

3. Set aside the orders of Davies J entering summary judgment against Mr Walton.

4. Make no order as to the costs of the proceedings in this Court.

1. SACKVILLE AJA: I agree with Barrett JA.

**********

Decision last updated: 12 December 2012