Global Lithium Resources Limited v Sincerity Development Pty Ltd

[2024] WASC 442

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GLOBAL LITHIUM RESOURCES LIMITED -v- SINCERITY DEVELOPMENT PTY LTD [2024] WASC 442

CORAM:   HILL J

HEARD:   ON THE PAPERS

DELIVERED          :   26 NOVEMBER 2024

FILE NO/S:   COR 139 of 2024

BETWEEN:   GLOBAL LITHIUM RESOURCES LIMITED

Plaintiff

AND

SINCERITY DEVELOPMENT PTY LTD

Defendant

Catchwords:

Practice and procedure - Costs - Plaintiff's application for costs order against defendant - Plaintiff's application for extension of time to convene meeting - Plaintiff's Calderbank offer rejected by defendant - Whether unreasonable to reject offer - Where application always required - Turns on own facts

Legislation:

Nil

Result:

TBA

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Thomson Geer
Defendant	:	Cornerstone Legal

Case referred to in decision:

Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333

HILL J:

1. On 18 September 2024, I made orders extending the period fixed by s 249D(5) of the Corporations Act 2001 (Cth) (Act) for the plaintiff to call a general meeting of its members.[1]  These orders were made after the parties filed a memorandum of consent orders shortly before the hearing and after hearing counsel for both parties. 

   [1] Orders of Hill J made 18 September 2024.

2. On the same date, I also made orders for the plaintiff to file and serve any application for costs, to be determined on the papers.

Orders sought

1. The plaintiff seeks an order that the defendant pay its costs of the action, including the reserved costs of 11 September 2024, to be taxed if not agreed.  In contrast, the defendant says that the appropriate order is that there be no order as to costs.

2. The plaintiff advances two primary reasons for the orders it seeks.  First, in its submission, the plaintiff was wholly successful on the application and the defendant only agreed the orders 'at the last minute'.  Second, the plaintiff attempted to resolve the matter before commencing the action.  This included informing the defendant of the intention to seek orders in materially the same form as those filed by consent on 18 September 2024, and by making a Calderbank[2] offer on 16 October 2024, which was rejected. 

   [2] Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333.

3. The defendant denies its conduct protracted the proceedings and was not so unreasonable as to justify a costs order being made against it. 

4. The defendant submitted that, for three primary reasons, orders should be made in terms of its minute. 

5. First, the plaintiff's application was always required.  The plaintiff did not take steps to call the shareholders' meeting within the period specified in the Act.  As a result, it needed to obtain an extension from the court. 

6. Second, in the defendant's submission, the plaintiff unnecessarily delayed the commencement of the proceedings and failed to adequately confer with the defendant prior to bringing the proceedings. 

7. Third, in relation to the Calderbank offer, the offer was open for less than 24 hours and expired at the time the defendant was required to file its case.  The defendant says it acted reasonably in rejecting the offer as the plaintiff had not, at that stage, sufficiently addressed the issue of the substantial injustice which might be occasioned by the application.  After additional affidavit material was filed, the defendant promptly informed the plaintiff of its consent to the orders sought.[3]

   [3] Affidavit of Bronwyn Maree Waugh filed 3 October 2024, 'BMW-5'.

What costs order should be made?

1. For the following reasons, it is my view that the appropriate costs order is that there be no order as to costs.

2. First, as was stressed by counsel for the plaintiff at the hearing of the originating process, it was always necessary for the court to form its own opinion as to whether an extension of time ought be granted under s 1322 of the Act.  This was not a matter that could be resolved by the consent of the parties. 

3. Second, given the urgency with which the proceedings were commenced, heard and determined, I do not consider the defendant's conduct was unreasonable or that it significantly added to the conduct of the matter.  The defendant was entitled to have an opportunity to properly consider all materials filed in support of the application before confirming its position. 

4. Third, in relation to the Calderbank offer made by the plaintiff, even if this had been accepted by the defendant, it would have still been necessary for the plaintiff to obtain orders from the court.  On this basis, I do not consider that the making or rejection of this offer is material to the costs decision. 

Conclusion

1. For these reasons, it is ordered that there be no order as to the costs of the originating process dated 11 September 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JN

Associate to the Honourable Justice Hill

26 NOVEMBER 2024