El-Ansary v El-Raghy
[2002] WASC 51 (S)
EL-ANSARY & ANOR -v- EL-RAGHY & ORS [2002] WASC 51 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 51 (S) | |
| Case No: | COR:350/1998 | 10-13 SEPTEMBER, 19 SEPTEMBER 2001, 16-18 JANUARY 2002, 21-23 JANUARY 2002 | |
| Coram: | TEMPLEMAN J | 25/03/02 | |
| 11/04/02 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Costs orders made | ||
| B | |||
| PDF Version |
| Parties: | MOHAMED EL-ANSARY BARBARA EL-ANSARY SAMI ABBAS YOUSSEF EL-RAGHY MICHAEL JOHN BRENZ KRIEWALDT EL-RAGHY KRIEWALDT PTY LTD (ACN 009 091 516) NORDANA PTY LTD (ACN 009 087 414) PHARAOH GOLD MINES NL (ACN 062 135 728) CENTAMIN NL (ACN 007 700 352) |
Catchwords: | Practice and procedure Costs Turns on own facts |
Legislation: | Nil |
Case References: | Australian Guarantee Corporation Ltd v De Jager [1984] VR 483 Packer v Meagher [1984] 3 NSWLR 486 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 11 APRIL 2002 FILE NO/S : COR 350 of 1998 BETWEEN : MOHAMED EL-ANSARY
- BARBARA EL-ANSARY
Applicants
AND
SAMI ABBAS YOUSSEF EL-RAGHY
First Respondent
MICHAEL JOHN BRENZ KRIEWALDT
Second Respondent
EL-RAGHY KRIEWALDT PTY LTD (ACN 009 091 516)
Third Respondent
NORDANA PTY LTD (ACN 009 087 414)
Fourth Respondent
PHARAOH GOLD MINES NL (ACN 062 135 728)
Fifth Respondent
(Page 2)
- CENTAMIN NL (ACN 007 700 352)
Sixth Respondent
Catchwords:
Practice and procedure - Costs - Turns on own facts
Legislation:
Nil
Result:
Costs orders made
Category: B
Representation:
Counsel:
Applicants : Mr M D Cuerden
First Respondent : Mr R E Birmingham QC
Second Respondent : Mr R E Birmingham QC
Third Respondent : Mr R E Birmingham QC
Fourth Respondent : Mr R E Birmingham QC
Fifth Respondent : Mr R E Birmingham QC
Sixth Respondent : Mr P E Harris
Solicitors:
Applicants : Tottle Christensen
First Respondent : Healy Pynt
Second Respondent : Healy Pynt
Third Respondent : Healy Pynt
Fourth Respondent : Healy Pynt
Fifth Respondent : Healy Pynt
Sixth Respondent : Fearis Salter Power Shervington
(Page 3)
Case(s) referred to in judgment(s):
Australian Guarantee Corporation Ltd v De Jager [1984] VR 483
Packer v Meagher [1984] 3 NSWLR 486
Case(s) also cited:
Nil
(Page 4)
1 TEMPLEMAN J: On 25 March 2002 I delivered my reasons for dismissing the application and made an order in those terms. I then heard submissions about costs and reserved my decision. I now set out my reasons in relation to costs and the orders I propose to make.
The costs of the first to the fifth respondents
2 These respondents were successful in their defence of the application. Mr Birmingham QC submitted on behalf of these respondents that the applicant should be ordered to pay their costs on a solicitor-client basis. Mr Birmingham submitted that the applicants' contention that the share placements were unnecessary because PGM always had sufficient money, was "manifestly untrue" and was well known by the applicants to be untrue when they launched their application.
3 Mr Birmingham submitted further that the application was made for the ulterior purpose of exerting pressure on Centamin at a crucial stage of its negotiations with PGM.
4 I accept that it is appropriate to order costs to be paid on a solicitor-client basis if there is some impropriety on the part of the unsuccessful party, albeit conduct which is not so improper as to warrant an order for indemnity costs. Seaman, par [66.1.14] gives examples of circumstances in which solicitor-client costs may be ordered: where an unsuccessful plaintiff proceeded against a defendant with "high handed presumption": Australian Guarantee Corporation Ltd v De Jager [1984] VR 483 at 502, or where the Court's process was used for an ulterior purpose: Packer v Meagher [1984] 3 NSWLR 486 at 500.
5 I do not think it can be said in the present case that the applicants knew PGM's financial circumstances were as I have found them to be. Indeed, those circumstances emerged only during the course of the trial, with the production by the respondents of various bank documents from which a clearer picture of PGM's financial position emerged. The case is therefore quite different from Australian Guarantee Corporation Ltd v De Jager (supra) where the plaintiff mortgagee sued on a document in circumstances which should have alerted it to the fact that the relevant signature may not have been genuine.
6 Nor am I persuaded that the present applicants acted with an ulterior purpose. Mr El-Ansary was certainly asked in cross-examination whether the timing of this application was designed to frustrate the acquisition of
(Page 5)
- PGM by Centamin. Mr El-Ansary denied that was so (TS 161): and I accept his denial. I do not think it was in Mr El-Ansary's commercial interest to frustrate the acquisition. It was potentially to his benefit for the acquisition to succeed, thereby improving PGM's Egyptian prospects and enhancing its value.
7 I am not persuaded therefore that it would be appropriate in this case for costs to be awarded on a solicitor-client basis.
8 Mr Cuerden, for the applicants, submitted that the respondents should not be entitled to an order for the payment of the costs of the entire action. He submitted that his clients should be ordered to pay 75 per cent of the respondents' costs. This on the basis that much time was wasted in the cross-examination of Mr El-Ansary for the purpose of proving documents which would have been included in the trial bundle by consent, if the respondents had acceded to the applicants' invitation to agree it.
9 Furthermore, Mr Cuerden submitted, the respondents were unsuccessful in their contention that the applicants' shares in PGM were held on trust.
10 In my view, there is some merit in these submissions, but I think that a 25 per cent reduction is too great. I estimate that a total of two days were wasted on unnecessary cross-examination of Mr El-Ansary and on the trust issue (taking into account time spent on the preparation of affidavit evidence).
11 I therefore propose to order the applicants to pay the first to the fifth respondents' costs, which are to be taxed as one set of costs on the basis that the trial was of nine days duration.
12 Mr Birmingham submitted further that the costs should be taxed without regard to the limits imposed by the costs scale. He submitted that such an order would be justified by the fact that much of the information his clients had to establish was in Egypt; that documents had to be translated, and that considerable expense was incurred in proofing Mr Grubb, unnecessarily, as it transpired. I do not accept that submission.
13 In my view, these factors do not justify a special costs order. The reasonable cost of translations will be a disbursement: and the taxing officer has a discretion to allow any other appropriate costs under item 13A of the scale.
(Page 6)
14 I will, however, certify for second counsel and for transcript.
The costs of the sixth respondent
15 Mr Harris, counsel for Centamin, the sixth respondent, submitted that the applicant should pay his client's costs of the application.
16 Mr Harris attended at the trial. However, he called no witnesses: nor did he cross-examine witnesses called by any other party. At one stage, he described himself as holding a watching brief.
17 Mr Harris' submission was based on the proposition that because relief was sought against Centamin, it was always at risk. However, that was the position only until 16 September 1999, when an order was made by consent to the effect that the only relief sought against Centamin was consequential upon an order being made against the other respondents. The order provided also that Centamin need take no further part in the proceedings unless it chose to do so, or unless the applicants gave notice that they intended to seek specific relief. No such notice was given.
18 I accept Mr Cuerden's submission that the purpose of the order was to remove Centamin from the proceedings relating to the preliminary issue, and thereby to save costs.
19 In these circumstances I see no reason to require the applicants to pay Centamin's costs after 16 September 1999. The applicants accept that they must pay Centamin's costs down to that date. Although Centamin gave some discovery during the course of the trial, that is not a matter which justifies any order for costs beyond those relating to the discovery process.
20 I therefore propose to make the following orders:
1. Application dismissed (as ordered on 25 March 2002).
2. Applicants to pay the first to the fifth respondents' costs, to be taxed as one set of costs, as for an action of nine days duration.
3. The first to the fifth respondents are to have a certificate for second counsel and for transcript.
4. The applicants are to pay the sixth respondents costs down to and including 16 September 1999 and any reasonable costs relating to discovery thereafter.
(Page 7)
- 5. The respondents are to pay the applicants' costs of the hearing on 25 March 2002.
21 I direct counsel to confer for the purpose of submitting a minute giving effect to these orders.
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