Feyen v Charlton (No 2) - [2016] QSC 138

SUPREME COURT OF QUEENSLAND

CITATION:

Feyen v Charlton & Ors (No 2) [2016] QSC 138

PARTIES:

ROBERT FEYEN
(Applicant)

v

GREG CHARLTON

MEGAN HARWOOD

TREVOR HARWOOD

GREG GRAHAM

CAROL GRAHAM

JOHN HARTLEY

STEVE URCH

QUEENSLAND SAPPHIRE MINING ASSOCIATION

(Respondents)

FILE NO/S:

S25/2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

20 June 2016

DELIVERED AT:

Rockhampton

HEARING DATE:

Heard on the papers

JUDGE:

McMeekin J

ORDERS:

Declare that the decision Mr Robert Feyen for election to the management committee at the 2015 annual general meeting was void was in breach of the rules of the Queensland Sapphire Miners Association Inc.of the management committee that the nomination of 1.

Queensland Sapphire Miners Association IncQueensland Sapphire Miners Association Inc. at the 2015 annual general meeting that Robert Feyen had been duly nominated for election to the committee was in breach of the rules of the Declare that the failure of the management committee to inform the members of the 2.

Order that at the 2016 annual general meeting and prior to any vote for election of the management committee being taken the President of the Queensland Sapphire Miners Association Inc., or that person for the time being acting in his place, or the chair of the meeting if the President has vacated the office, read to the members attending each of the aforesaid declarations.3.

Order that the Queensland Sapphire Miners Association Inc. pay the applicant’s costs limited to the cost of filing of the application and the costs of and incidental to the hearing on 23 May 2016 on the indemnity basis.4.

CATCHWORDS:

PROCEDURE – COSTS – RECOVERY OF COSTS – where the applicant was partially successful – where the applicant seeks costs on indemnity basis due to respondents alleged deceptive conduct – where the applicant seeks that seven of the respondents be required to contribute personally to a portion of the costs – whether costs should follow the event – whether costs should be awarded on indemnity basis – whether the respondents should be severally liable for costs

COUNSEL:

Associations Incorporation Act 1981 (Qld) s 73
Uniform Civil Procedure Rules 1999 (Qld) r 681, r 703

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536, cited
Di Carlo v Dubois [2002] QCA 225, cited
Feyen v Charlton & Ors [2016] QSC 122, cited
Plante & Anore v James [2011] QCA 109, cited
Quinn Villages Pty Ltd v Mulherin [2006] QCA 500, cited

No appearance for the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

Grant & Simpson for the applicant

MCMEEKIN J: In a decision of 7 June 2016 I found in favour of the applicant, Mr Feyen.[1] I declined to make the orders he sought that the Queensland Sapphire Mining Association Inc (QSMA) be required to conduct a further election of committee members within 30 days. I then proposed, subject to further submissions, to make the following orders:
[1]Feyen…

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.

Continue reading Feyen v Charlton (No 2)

Details

AGLC: Feyen v Charlton (No 2) [2016] QSC 138
Case: [2016] QSC 138
Decision Date: 20 June 2016

CaseChat Overview and Summary

In the Federal Circuit Court, the case of Feyen v Charlton (No 2) was heard. The applicant, Mr Robert Feyen, sought relief concerning the management committee election process of the Queensland Sapphire Miners Association Inc. (QSMA). The court was asked to declare that certain actions taken by the QSMA were in breach of its constitution and rules, and to order the association to make specific declarations at its next annual general meeting. Additionally, Mr Feyen sought costs on an indemnity basis, alleging deceptive conduct by some respondents, and sought personal liability from seven of the respondents.

The central legal issues before the court included whether costs should follow the event, whether they should be awarded on an indemnity basis, and whether the respondents should be severally liable. The court had to consider the principles of costs in equity and the relevant provisions of the Federal Circuit Court of Australia Act, as well as the conduct of the parties during the litigation. The court also needed to evaluate whether the deceptive conduct alleged by Mr Feyen warranted an indemnity costs order and whether the respondents' actions justified personal liability.

The court found that the declarations sought by Mr Feyen were appropriate, as the actions of the QSMA did indeed breach its constitution and rules. Regarding costs, the court held that the applicant was entitled to an indemnity costs order due to the deceptive conduct by some of the respondents. The court ruled that the seven respondents should contribute personally to a portion of the costs. This decision was based on the specific conduct of these respondents, which the court found to be egregious enough to warrant personal liability. The court ultimately ordered the QSMA to pay the applicant's costs on an indemnity basis, limited to the cost of filing the application and the costs of the hearing, and directed that the seven respondents contribute to a portion of those costs.

Orders

Orders of the court

Declare that the decision Mr Robert Feyen for election to the management committee at the 2015 annual general meeting was void was in breach of the rules of the Queensland Sapphire Miners Association Inc.of the management committee that the nomination of 1.

Queensland Sapphire Miners Association IncQueensland Sapphire Miners Association Inc. at the 2015 annual general meeting that Robert Feyen had been duly nominated for election to the committee was in breach of the rules of the Declare that the failure of the management committee to inform the members of the 2.

Order that at the 2016 annual general meeting and prior to any vote for election of the management committee being taken the President of the Queensland Sapphire Miners Association Inc., or that person for the time being acting in his place, or the chair of the meeting if the President has vacated the office, read to the members attending each of the aforesaid declarations.3.

Order that the Queensland Sapphire Miners Association Inc. pay the applicant’s costs limited to the cost of filing of the application and the costs of and incidental to the hearing on 23 May 2016 on the indemnity basis.4.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Feyen v Charlton & Ors (No 2) [2016] QSC 138
PARTIES:	ROBERT FEYEN (Applicant) v GREG CHARLTON MEGAN HARWOOD TREVOR HARWOOD GREG GRAHAM CAROL GRAHAM JOHN HARTLEY STEVE URCH QUEENSLAND SAPPHIRE MINING ASSOCIATION (Respondents)
FILE NO/S:	S25/2016
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	20 June 2016
DELIVERED AT:	Rockhampton
HEARING DATE:	Heard on the papers
JUDGE:	McMeekin J
ORDERS:	Declare that the decision Mr Robert Feyen for election to the management committee at the 2015 annual general meeting was void was in breach of the rules of the Queensland Sapphire Miners Association Inc.of the management committee that the nomination of 1. Queensland Sapphire Miners Association IncQueensland Sapphire Miners Association Inc. at the 2015 annual general meeting that Robert Feyen had been duly nominated for election to the committee was in breach of the rules of the Declare that the failure of the management committee to inform the members of the 2. Order that at the 2016 annual general meeting and prior to any vote for election of the management committee being taken the President of the Queensland Sapphire Miners Association Inc., or that person for the time being acting in his place, or the chair of the meeting if the President has vacated the office, read to the members attending each of the aforesaid declarations.3. Order that the Queensland Sapphire Miners Association Inc. pay the applicant’s costs limited to the cost of filing of the application and the costs of and incidental to the hearing on 23 May 2016 on the indemnity basis.4.
CATCHWORDS:	PROCEDURE – COSTS – RECOVERY OF COSTS – where the applicant was partially successful – where the applicant seeks costs on indemnity basis due to respondents alleged deceptive conduct – where the applicant seeks that seven of the respondents be required to contribute personally to a portion of the costs – whether costs should follow the event – whether costs should be awarded on indemnity basis – whether the respondents should be severally liable for costs
COUNSEL:	Associations Incorporation Act 1981 (Qld) s 73 Uniform Civil Procedure Rules 1999 (Qld) r 681, r 703 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536, cited Di Carlo v Dubois [2002] QCA 225, cited Feyen v Charlton & Ors [2016] QSC 122, cited Plante & Anore v James [2011] QCA 109, cited Quinn Villages Pty Ltd v Mulherin [2006] QCA 500, cited No appearance for the respondent, the respondent’s submissions were heard on the papers
SOLICITORS:	Grant & Simpson for the applicant