Equity Plus Home Loans (Aust) Pty Ltd v PFG Wealth Pty Ltd
[2011] WASC 241 (S)
•13 SEPTEMBER 2011
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | EQUITY PLUS HOME LOANS (AUST) PTY LTD - v- PFG WEALTH PTY LTD [2011] WASC 241 (S) |
| CORAM | : MASTER SANDERSON | ||
| HEARD |
| ||
| DELIVERED |
| ||
| SUPPLEMENTARY | |||
| DECISION |
| ||
| FILE NO/S |
| ||
| BETWEEN |
|
AND
PFG WEALTH PTY LTD
Defendant
Catchwords:
Cost - Proper cost order value party not given opportunity to make submission -
Turns on own facts
Legislation:
Nil
Result:
| Cost order adjusted Category: B | [2011] WASC 241 (S) |
| Representation: | |
| Counsel: |
| Plaintiff | : | Mr S C England |
| Defendant | : | Mr P Mendelow |
Solicitors:
| Plaintiff | : | Lawton Gillon |
| Defendant | : | Wantrup and Associates |
Case(s) referred to in judgment(s):
Equity Plus Home Loans (Aust) Pty Ltd v PFG Wealth Pty Ltd [2011] WASC
241
Minister for Education v Klein [2005] WASCA 185 (S)
| MASTER SANDERSON | [2011] WASC 241 (S) |
MASTER SANDERSON: The plaintiff's application to set aside the defendant's statutory demand was heard on 31 August 2011. The application related to two claims made by the defendant against the plaintiff. The defendant's first claim was for the repayment of a total principal amount of $100,000 pursuant to the terms of two secured loan agreements. The defendant's second claim related to the monthly payments payable by the plaintiff to the defendant under an agreement to purchase Challenger mortgage management non-conforming loan book. After hearing argument I reserved by decision.
2 On 5 September 2011 the plaintiff, without leave and without notice
to the defendant, filed a further affidavit in support of its application. There was correspondence between the solicitors for the plaintiff and the defendant in which the defendant made it clear they did not consent to the plaintiff relying on the further affidavit.
3 On 13 September 2011 I handed down my reasons for decision:
Equity Plus Home Loans (Aust) Pty Ltd v PFG Wealth Pty Ltd [2011] WASC 241. I made no mention of the additional affidavit. There was one good reason why I did not mention that affidavit. I did not take it into account as in my view there was no warrant for considering it part of the court record. No solicitor should unilaterally decide to file an affidavit purporting to adduce further evidence in relation to a matter which has been heard and waiting determination. If consent from the defendant's solicitors had been forthcoming the position may have been different, but there was no consent and I gave the affidavit no consideration.
4 On 13 September 2011 the defendant's solicitors wrote to my
associate enclosing a copy of the defendant's minute of proposed order and costs submissions. I made an order in terms of the defendant's minute. Regrettably notice of the orders made was not given to the plaintiff's solicitor until 23 September 2011. By then the plaintiff had only until 27 September 2011 to comply with the statutory demand. On 25 October 2011 the plaintiff paid to the defendant the amount of the statutory demand.
5 The plaintiff then sought to have the orders made recalled as it had
not had the opportunity to make submissions as to the form of orders and as to costs. It should be noted the orders I made were not extracted by either party.
6 It is clear there is power to recall orders without appeal. In Minister for Education v Klein [2005] WASCA 185 (S) [7] Steytler P summarised
| MASTER SANDERSON | [2011] WASC 241 (S) |
the relevant authorities relating to the recalling of unperfected judgments or orders. In particular his Honour referred to cases where 'there is some matter calling for review' and where 'the interests of justice so require'.
His Honour went on to say:
[I]t seems to me that, when a party has not been given an adequate opportunity to present submissions in relation to a finding of critical importance to the court's ultimate decision ... this Court, too, should be willing to reopen an unperfected judgment or order [8].
8 Given the concerns raised by the plaintiff I relisted the matter in
chambers on 3 November 2011. I directed the parties to file written submissions as to whether it was appropriate to recall the orders made and further to file submissions in relation to costs. Both parties availed themselves of the opportunity to file submissions. So what falls for determination is whether the orders made ought be recalled and if they are recalled what orders should now be made.
9 Before dealing with these two issues I should comment on the
plaintiff's submissions. Between pars 25 - 31 of those submissions counsel for the plaintiff refers to the further affidavit material and maintains it should have been taken into account in reaching a decision. I have already commented on this issue. However, lest there be any doubt, I repeat, there was no warrant for my considering this evidence which was submitted without leave after the hearing had been concluded.
10 I am satisfied the order made in this matter ought be recalled. The
plaintiff did not have the opportunity to put submissions in relation to costs, and in the interests of justice the plaintiff should have been permitted to make those submissions. In my view there is no warrant for altering the order adjusting down the amount of the statutory demand. The plaintiff seeks an order which would set aside the statutory demand. That presumably relies upon the further affidavit evidence. There is no basis upon which an order in those terms could be made. The order adjusting down the amount of the statutory demand and extending the time for compliance with the demand should stand. In relation to costs the plaintiff makes the perfectly valid point it was successful as the amount of the demand was reduced. That fact should be reflected in the costs order.
11 Accordingly I am satisfied the appropriate costs order is the plaintiff
pay 50% of the defendant's costs including reserved costs such costs to be
taxed if not agreed.
0
0
1