Duff v Southport RSL Memorial Club Inc and Returned Services League

[2001] QSC 404

SUPREME COURT OF QUEENSLAND

CITATION:              Duff  v  Southport  RSL  Memorial  Club  Inc  and  Returned

Services League [2001] QSC 404

PARTIES:                 ROBERT JOHN DUFF

(applicant)

v

SOUTHPORT          RSL          MEMORIAL          CLUB INCORPORATED

(first respondent)

and

TRUSTEES  OF  THE  RETURNED  AND  SERVICES LEAGUE OF AUSTRALIA (QUEENSLAND BRANCH) SOUTHPORT SUB-BRANCH

(second respondent)

FILE NO:                  S7844 of 2001

DIVISION:               Trial Division

DELIVERED ON:    31 October 2001

DELIVERED AT:     Brisbane

HEARING DATE:     Written submissions

JUDGE:  Mackenzie J

ORDER:That John David Evans pay the applicant’s costs of the application,  including  reserved  costs  and  costs  of  the application for costs, to be assessed.

CATCHWORDS:       PROCEDURE – COSTS – application that a person not a party to proceedings pay the costs of the applicant – whether it is within the power of the court to make an order for costs against a non-party to proceedings.

Uniform Civil Procedure Rules r 69(1)(b)(i), r 69(1)(b)(ii) Knight v FP Special Assets Ltd (1992) 174 CLR 178, applied Naomi Marble  &  Granite Pty Ltd v FAI General Insurance Co Limited (No 2) (1999) 1 QdR 518, considered

SOLICITORS:          Mallesons Stephen Jaques Solicitors for the applicant

Bowdens Lawyers for the respondent

2

[1]     MACKENZIE J:   This is an application that John David Evans, a person who is not a party to the proceedings, pay the costs of the applicant, who is a receiver and manager.  When judgment was delivered in the application on 25 September 2001 an application was made that Mr Evans be ordered to pay the applicant’s costs. Directions were given and written submissions were delivered by the applicant and Mr Evans.  Neither the first nor second respondent participated in the proceedings before  me;  nor  did  they  deliver  written  submissions  concerning  costs.    The applicant and Mr Evans both indicated that they did not require an oral hearing.

[2]     The history of the matter is that an interim injunction was granted against the first respondent on 29 August 2001 and extended on 4 September 2001.  It was granted on the foundation of evidence that when the applicant had gone to the club to assume control of it he was met by a group of men which included Mr Evans.  After the applicant asserted his right to enter as receiver and manager, Mr Evans advised him that he did not recognise the validity of the appointment.  He demanded that the receiver and manager leave the premises, called security guards and threatened to have the guards physically remove the receiver and manager and his staff from the premises.

[3]     The affidavit upon which the application for the injunction was based deposes that it appeared to the applicant that the argument relied on apparently concerned the failure of the club to obtain the consent of a general meeting of the club to consent to entering into the securities underlying the applicant’s appointment.  This was the same argument that counsel for Mr Evans said he would rely on if Mr Evans was allowed to be joined.  When the matter came before me on 19 September 2001, I refused an application under  UCPR r 69(1)(b)(i) and/or (ii) with the consequence that Mr Evans was not permitted to participate in the argument before me.

[4]     It is apparent from the material before me that there was internal dissension in the club.  Neither the club nor the trustees appeared to resist the applicant’s argument in support of the validity of his appointment.  There was material suggesting that there had been an abortive attempt to hold a meeting to require the application to be resisted.

[5]     For the reasons given on 26 September 2001, I held that there was no defect in the receiver and manager’s appointment.  Declarations that the applicant’s appointment was valid and that the applicant was entitled to exercise his powers under the relevant securities were made.

[6]     In a case where it is in the interests of justice to do so, it is within power of this Court to make an order for costs against a non-party to proceedings (Knight v FP Special Assets Ltd (1992) 174 CLR 178). The circumstances of the case must be such as to take the case beyond the prima facie  general principle that costs orders are  made  against  parties  (Naomi  Marble  &  Granite  Pty  Ltd  v  FAI  General Insurance Co Limited (No 2) (1999) 1 QdR 518, 543-4). In Naomi Marble, Shepherdson J set out (545) categories of persons who, by reference to case law, had been made amenable to orders for non-party costs.  There is nothing in the passage referred to that suggests that Shepherdson J purported to attempt to set out closed categories.

3

[7]     To summarise the evidentiary position in the present case, Mr Evans was one of those who demonstrated opposition to the receiver and manager when he tried to enter the premises.  He was challenged by Mr Evans.  Security guards were called and the possibility of having the receiver and manager removed was mentioned.  Mr Evans propounded the argument that the appointment of the receiver and manager was invalid.  He had no lawful authority from the club or the trustees to do so on their behalf.  The attitude displayed by him led to the need for the receiver and manager to seek intervention of the court.

[8]     When the matter came before me, Mr Evans sought, through counsel, leave to join in the proceedings.  After some initial ambivalence as to whether one or other of the respondents was to be represented by the same counsel it was later announced that counsel was appearing only for Mr Evans.  Nevertheless, Mr Evans persisted with his application which was refused.  During the course of argument on joinder it was confirmed by his counsel that the argument intended to be placed before the court was that which the receiver and manager understood to be relied on on the occasion he was confronted and which proved to be without foundation.

[9]     The reality is that the sole need for the applicant to bring proceedings at all was occasioned by the resistance by Mr Evans, perhaps encouraged by others, to the receiver and manager carrying out his functions.  Notwithstanding the fact that Mr Evans had time to consider his position in the period between the initial hearing and the date of the hearing before me, the applicant was forced to come to court on the second occasion to vindicate his position.

[10]     Although  the  particular  facts  do  not  literally  fall  within  one  of  the  categories referred to in Shepherdson J’s catalogue of examples in  Naomi Marble, it is in my view a clear case where the over-arching principle of the interest of justice permits and requires the discretion to be exercised in the applicant’s favour.  Accordingly I order that John David Evans pay the applicant’s costs of the application, including reserved costs and costs of the application for costs, to be assessed.