Goldstocks Ltd v ReMS Enterprises Pty Ltd

[1991] FCA 719

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	No.QG 28 of 1990
GENERAL DIVISION

BETWEEN:  GOLDSTOCKS LIMITED

First Applicant

KENNETH DUDLEY TAYLOB

Second Applicant

DONALD VICTOR TAYLOB

Third Applicant

GARY THOMAS DOWN

Fourth Applicant

ALISTAIR BYRON

Fifth Applicant

KDT HOLDINGS PTY LIMITED

Sixth Applicant

AND:  REMS ENTERPRISES PTY LIMITED

First Respondent

THE0 STAVRIANOS

Second Respondent

RICHARD ROSS

Third Respondent

IAN ALTON MCKENZIE

Fourth Respondent

ROBERT CARL ELLIOTT

Fifth Respondent

Eleventh Respondent

JOHN ISAACB

Sixth Respondent

PHILIP MEISNER

Seventh Respondent

ROBERT B ELLIOTT

Eighth Respondent

EDITAPE PTY LIMITED

Ninth Respondent

OMEGA DUPLICATION PTY

LIMITED

Tenth Respondent

CORPORATE VIDEO PTY LIMITED

JUDGE MAKING ORDER:	LOCKHART J.
WHERE ORDER MADE:	SYDNEY
DATE ORDER MADE:	25 OCTOBER 1991

MINUTE OF ORDER

THE COURT ORDERS THAT:

1.    The First, Second, Third, Fourth, Eighth, Ninth and Tenth respondents may proceed to have their bills of costs taxed and paid in respect of matters that have been the subject of prior orders for costs and the order for costs made in order 2 of this order, notwithstanding thatthe proceedings have not concluded.

2 .    The Second, Third and Fifth applicants pay the costs of the first, second, third, fourth, eighth, ninth and tenth respondents of their motion dated 26 September 1991.

3.    The first, second, third, fourth, eighth, ninth and tenth respondents file and serve all statements of evidence upon which they wish to rely on or before 28 November 1991.

4 .    There be no order for costs of the second, third and fifth applicants' notice of motion.

1. The matter be adjourned to 6 December 1991 at 9.30 am for further directions and the return of any subpoenas.

2. The directions hearing currently listed on 1 November

1991 be vacated.

1. The motion of the fifth respondent dated 24 July 1991 be dismissed.

8 .    The fifth respondent pay the costs of the second, third and fifth applicants of their motion dated 24 July 1991.

NOTE:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERRL COURT OF AUSTRALIA	) )

NEW SOUTH WALES DISTRICT REGISTRY ) NO. G 28 of 1990

1

W E R R L DIVISION )

BETWEEN:  GOLDSTOCKS LIMITED

First Applicant

KENNETH DUDLEY TAYLOq

Second Applicant

DONALD VICTOR TAYLOR

Third Applicant

GARY THOMAS DOWN

Fourth Applicant

ALISTAIR BYRON

Fifth Applicant

KDT HOLDINGS PTY LIMITED

Sixth Applicant

AND:  REMS ENTERPRISES PTY LIMITED

First Respondent

THE0 STAVRIANOS

Second Respondent

RICHARD ROSS

Third Respondent

IAN ALTON MCKENZIE

Fourth Respondent

ROBERT CARL ELLIOTT

Fifth Respondent

JOHN ISAACS

Sixth Respondent

PHILIP MEISNER

Seventh Respondent

ROBERT B ELLIOTT

Eighth Respondent

EDITAPE PTY LIMITED

Ninth Respondent

OMEGA DUPLICATION PTY

LIMITED

Tenth Respondent

CORPORATE VIDEO PTY LIMITED
Eleventh Respondent

24 OCTOBER 1991

REASONS FOR JUDGMENT

LOCKHART J.

There are before the Court this morning three motions,

two of which I have heard and one of which (which it is agreed
is discrete from the others) remains to be heard, and that is
a motion by the fifth respondent. I shall therefore deal with

the two motions before the Court.

The first is a motion dated 23 September 1991, originally

returnable on 26 September 1991, filed by the first, second, third, fourth, seventh, eighth, ninth and tenth respondents, seeking orders which are no longer pressed save as to order

three which simply asks for such other order as may be
appropriate. It is common ground that although one of the
moving parties is expressed as being the seventh respondent,

that that is in error, or at least is no longer relevant

because the case has been discontinued as against the seventh

respondent.

The second motion is by the second, third and fifth

applicants seeking directions as to the filing of statements
of evidence by the first, second, third, fourth, eight, ninth

and tenth respondents and an order for costs.

The case has a long and unfortunate history. It seems

from the evidence that I have before me and from my perusal of
the Court file, that there has been default at various times
since the inception of the proceeding by the applicants and by
the respondents. I say nothing at this stage about the fifth
respondent. There have been from time to time orders for
costs made by Judges of the Court against the applicants or
some of them, due essentially to default by the applicants in
complying with directions of the Court and the rules of Court.
Those costs orders were made, it seems, between April and
October of last year. There is evidence from the solicitor
for the first, second, third, fourth, eighth, ninth and tenth
respondents, seeking to quantify those costs but the amounts
are in dispute. However, it does appear from the affidavit
that although the amounts are in dispute the sums are not
small.

What the first, second, third, fourth, eight, ninth and

tenth respondents seek by their counsel is an order that they

be entitled now, notwithstanding that the proceedings have not

concluded, to have their bills of costs taxed and paid in

respect of costs the subject of earlier orders of the Court

against the applicants.

I should say at this stage that there are many parties in

the matter. There appear to be six applicants and eleven respondents, but there is some evidence as to the fate of certain of the parties, and although not evidence as to the

fate of all of them, statements have been made from the Bar
Table which are not disputed and they produce the result that
the first and sixth applicants are in liquidation, the fourth
applicant is an undischarged bankrupt and the sixth respondent
has not been served with the proceedings. I have already said
that the seventh respondent is a respondent against whom the
proceedings have been discontinued. Also, the eleventh
respondent is in liquidation. It appears at least at this
stage the other persons are still parties to the proceedings.

Notwithstanding that it appears the respondents

themselves have been in default of directions of the Court to
some degree in the past, it seems to me that the history of
the matter, as revealed by the evidence and argument (which
resulted from time to time in the orders being made for costs
against the applicants) requires that the orders sought by the
respondents for whom Mr Gibb appears should be made; namely,
that the costs the subject of prior orders should be taxed and
paid notwithstanding the pendency of the proceedings. These

orders are sought under order 62, rule 3 of this Court's Rules

and there is no doubt about the Court's power to make the

orders, so the matter is in the Court's discretion.

I say nothing about the correctness of the amounts to

which Mr A J Conyer, solicitor for the respondents for whom M r

Gibb appears, in particular as to their correctness or

sufficiency.	That is a matter to be determined by the taxing
officer	.

It is a little curious that, in the past, directions have

been sought by consent and made requiring the respondents to
file and serve their statements of witnesses, in effect, at
the same time as many of the statements of witnesses called by
the applicants are to be filed, and Mr Gibb now seeks to vary
that. He now has all the statements of the witnesses for the
applicants and seeks until 28 November to file his client's
statements, and it seems to me that is reasonable in all the
circumstances.

So far as costs of the first motion is concerned, that is

the motion of the respondents for whom Mr Gibb appears, it is true, as I said earlier, that the substance of what he sought has now changed since the motion was filed on 26 September,

but that is because of supervening events out of the control
of the respondents. Before making the orders which I have
foreshadowed, I should say that it is regrettable that there
has been default. The applicants certainly appear to have

been heavily at fault in relation to compliance with the

Court's directions. But in more recent months, due to a	change of solicitor, the matter appears to be well in hand and
capably looked after, which it is good to see from both the point of view of the applicants and the Court. So no order that is to be made by the Court is intended to reflect
adversely on the conduct of the matter by the solicitors presently appearing for the applicants.

Accordingly, the order of the Court is that the first,

second, third, fourth, eighth, ninth and tenth respondents may proceed to have their bills of costs taxed and paid in respect of matters that have been the subject of prior orders for

costs and the order for costs of that motion, which I propose
to make in a moment, notwithstanding that the proceedings have

not concluded.

The Court orders that the first, second, third, fourth,

eighth, ninth and tenth respondents file and serve all
statements of evidence upon which they wish to rely, on or
before 28 November 1991.

In relation to the second motion seeking directions with

respect to the filing of statements of evidence by the
respondents, it seems to me that that is a matter that is
really consequential to what has occurred this morning and
that there should be no order for costs of that motion of any
party. Accordingly, I make no order for costs of that motion.

I also order the second, third and fifth applicants to

pay the costs of the first, second, third, fourth, eighth,

ninth and tenth respondents of the motion 26 September 1981.

The Court will adjourn the matter to 6 December 1991 at

9.30 am for further directions and for the return of any

subpoenas, and the date of 1 November which had previously
been fixed by another Judge of the Court as a date for further
directions, is vacated.

The third motion is a motion by the fifth respondent to

the proceeding, Robert Car1 Elliott, who is the father of the
seventh respondent, Robert B Elliott. The fifth respondent
seeks an order that the proceedings against him be dismissed.
The basis of the motion is that the fifth respondent is said
to have no interest in the proceeding and he has sworn an
affidavit in support of that assertion. I have examined the
relevant pleadings which are the further re-amended statement
of claim filed on 24 October last year and the fifth
respondent's defence of 15 January this year. It seems plain
to me that having read those documents, there are live issues
involving the role of the fifth respondent in matters relevant
to the proceeding. For purposes of illustration and certainly
not for completeness, I need refer only to paragraph 3(d) and
paragraph 3(g) of the further re-amended statement of claim. I
note paragraph 4 . 2 of the defence of the fifth respondent,
which as I read it is an admission that the seventh respondent

was the accountant for the first respondent and that in his

dealings with the applicants was the servant or agent of a

number of parties including the fifth respondent and acting within the scope of his authority or, alternatively, at the direction or with the consent of a director, agent or servant

of certain of the relevant corporations including Rems
Enterprises Pty Limited. I have also been referred to certain
statements filed by witnesses for the applicants, or the
applicants themselves. It is plain from at least one of those
statements that assertions are, in fact, made against the
fifth respondent.

It is clear that the fifth respondent is a respondent

against whom assertions are still made and relied on by the
applicants in conformity with their pleading to found relief
against the fifth respondent. If at the end of the trial it
appears that the fifth respondent is not really a proper party
to the proceedings, in the light of the whole of the evidence,

it will of course, be regrettable because he is a man of some

81 years of age and, no doubt, the proceedings are troubling

to him and I have some sympathy with that. But nevertheless,
the material which I have read, together with the pleadings
and certain of the statements, make it clear that he is a
party against whom current assertions are still made of a
substantial nature and he cannot be dismissed as a respondent
at this stage of the proceeding. Whether the fifth respondent
will be represented at the trial by the same solicitors and
counsel who represent the other respondents is, of course,
another matter and one which is entirely for the fifth

respondent and the other respondents to assess in due course.

Accordingly, the motion of the fifth respondent, filed on 26

July 1991 is dismissed.

The applicants seek an order for costs against the fifth respondent of the motion. The evidence adduced in support of the motion by the fifth respondent goes to the question

whether he is a proper party to the proceeding. Counsel for
the fifth respondent informs me that when the motion was filed
it was filed on two bases, first, the one I have just
mentioned, and second, the default of the applicants in
properly prosecuting this proceeding. The fact is that it is
only the former that has been the basis of the motion this
morning and I think the only appropriate course to take is to

assess the question for costs on that basis. In my opinion

the fifth respondent must bear the costs of the motion.
Accordingly, I order the fifth respondent to pay the costs of
the second, third and fifth applicants of the notice of motion

filed by the fifth respondent on 2 6 July 1991.

I certify that this and the

preceding eight (8) pages are a
true copy of the reasons for
judgment herein of the

Honourable Mr. Justice Lockhart.

Associate L&

Dated:  2 4 October 1990

Counsel for the Second, Third &

Fifth Applicants

Solicitors for the Second, Third & :
Firth Applicants

Counsel for the First, Second,	:	S W Gibb
Third, Fourth, Eighth, Ninth & Tenth Respondents
Solicitors for the First, Second	:	Diamond Peisah &
Third, Fourth, Eighth, Ninth &	CO
Tenth Respondents
Counsel for the Fifth Respondent	:	K Duncombe
Solicitors for Fifth Respondent	:	Christopher Tosevic
Date of Hearing	2 4 October 1991
Date of Judgment	2 4 October 1991