Great Southern Ltd (in Liq) (Receivers and Managers Appointed) v Young
[2014] WASC 481 (S)
•24 FEBRUARY 2015
GREAT SOUTHERN LTD (IN LIQ) (RECEIVERS & MANAGERS APPOINTED) -v- YOUNG [2014] WASC 481 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 481 (S) | |
| Case No: | CIV:2635/2012 | ON THE PAPERS | |
| Coram: | ALLANSON J | 24/02/15 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Orders made | ||
| B | |||
| PDF Version |
| Parties: | GREAT SOUTHERN LTD (IN LIQ) (RECEIVERS & MANAGERS APPOINTED) MARTIN BRUCE JONES, ANDREW JOHN SAKER, DARREN GORDON WEAVER AND JAMES HENRY STEWART IN THEIR CAPACITIES AS JOINT AND SEVERAL LIQUIDATORS OF GREAT SOUTHERN LTD (IN LIQ) (RECEIVERS AND MANAGERS APPOINTED) JOHN CARLTON YOUNG CAMERON ARTHUR RHODES PHILLIP CHARLES BUTLIN ALICE MCCLEARY DAVID CHARLES GRIFFITHS PETER JOHN MANSELL MERVYN LEONARD PEACOCK |
Catchwords: | Orders to give effect to reasons Costs Whether apportionment of costs Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 7, O 7 r 1(1), O 7 r 1(3), O 58 r 23, O 59 r 7, O 66 r 1(1), O 66 r 1(3) Service and Execution of Process Act 1992 (Cth), s 15(2), s 16 Supreme Court Act 1935 (WA), s 37(1) |
Case References: | Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394 Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561 Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103 (S) Keet v Ward [2011] WASCA 139 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Popovic v Panagoulias [2014] WASCA 86 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
MARTIN BRUCE JONES, ANDREW JOHN SAKER, DARREN GORDON WEAVER AND JAMES HENRY STEWART IN THEIR CAPACITIES AS JOINT AND SEVERAL LIQUIDATORS OF GREAT SOUTHERN LTD (IN LIQ) (RECEIVERS AND MANAGERS APPOINTED)
Second Plaintiffs
AND
JOHN CARLTON YOUNG
First Defendant
CAMERON ARTHUR RHODES
Second Defendant
PHILLIP CHARLES BUTLIN
Third Defendant
ALICE MCCLEARY
Fourth Defendant
DAVID CHARLES GRIFFITHS
Fifth Defendant
PETER JOHN MANSELL
Sixth Defendant
MERVYN LEONARD PEACOCK
Seventh Defendant
Catchwords:
Orders to give effect to reasons
Costs - Whether apportionment of costs - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 7, O 7 r 1(1), O 7 r 1(3), O 58 r 23, O 59 r 7, O 66 r 1(1), O 66 r 1(3)
Service and Execution of Process Act 1992 (Cth), s 15(2), s 16
Supreme Court Act 1935 (WA), s 37(1)
Result:
Orders made
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiffs : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Solicitors:
First Plaintiff : Lipman Karas
Second Plaintiffs : Lipman Karas
First Defendant : No appearance
Second Defendant : Arnold Bloch Leibler
Third Defendant : Arnold Bloch Leibler
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Case(s) referred to in judgment(s):
Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394
Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561
Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103 (S)
Keet v Ward [2011] WASCA 139
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Popovic v Panagoulias [2014] WASCA 86
1 ALLANSON J: On 1 May 2014, the plaintiffs filed a chamber summons seeking three orders:
1. A declaration that the writ of summons [in the action] was validly served upon the first to third defendants by letters to their solicitors dated 31 March 2014.
2. Alternatively to 1, pursuant to Order 2 rule 1 of the Rules of the Supreme Court 1971 that any irregularity in the plaintiffs' failure to comply with Order 7 rule 1(3) at the time of delivery of the writ of summons be corrected, and that the service on the first to third defendants … be validated.
3. Alternatively to 1 and 2, pursuant to Order 3 rule 5 of the Rules the validity of the writ… be extended until a date 3 business days after the making of the order, and that the time to make this application for extension of the writ be extended nunc pro tunc until the date of this order.
2 On 16 May 2014, the second and third defendants, Cameron Rhodes and Phillip Butlin filed a competing summons seeking orders that:
1. Pursuant to Order 58 rule 23 as made applicable by Order 59 rule 7 of the Rules of the Supreme Court 1971 (WA) (Rules), or alternatively pursuant to Order 12 rule 6(2) of the Rules, the order of Registrar C Boyle made on 24 September 2013 extending the validity of the Writ of summons dated 26 September 2012 (Writ) to 31 March 2014 be set aside.
2. Pursuant to Order 12 rule 6(2) of the Rules, service of the Writ on Mr Cameron Arthur Rhodes (Rhodes) and on Phillip Charles Butlin (Butlin) on 31 March 2014 be declared invalid, or alternatively be declared ineffective by reason of the Plaintiffs' non-compliance with Order 9 rule 1(1) and Order 10 rule 1A(1) of the Rules and with sections 15(2) and 16 of the Service and Execution of Process Act 1922 Cth.
3. Further or alternatively to paragraph 2 above, pursuant to Order 12 rule 6(2) of the Rules, service of the Writ on Rhodes and on Butlin on 31 March 2014 be declared invalid, or alternatively be declared ineffective by reason of the Plaintiffs' non-compliance with Order 7 rule 1(3) of the Rules.
4. The proceedings as against Rhodes and Butlin be dismissed.
5. The Plaintiffs pay the cost of Rhodes and Butlin of this application and of the proceedings, such costs to be taxed unless agreed or fixed by the Court.
6. Such further or other order that the court deems fit.
3 The competing applications were heard over two days in June 2014, and on 17 December 2014 the court delivered reasons to the effect that:
1. The decision of the registrar to extend the validity of the writ should be set aside;
2. The applications by the plaintiffs fall away with the setting aside of the order extending the validity of the writ.
4 I did, however, express the view that, had I been satisfied that the decision of the registrar to extend the validity of the writ should be confirmed, I would have made such orders as were necessary to either regularise service or permit the writ to be re-served in compliance with the Service and Execution of Process Act 1992 (Cth). There was no dispute that the copies served were not indorsed as required by O 7 r 1(3) of the Rules of the Supreme Court 1971 (WA) (Rules) (the copy served had not been marked with the official stamp showing an extension of its validity); and that the plaintiffs failed to comply with the Service and Execution of Process Act in not attaching prescribed notices. This was, however, in circumstances where the plaintiffs' solicitors had written to the defendants' solicitors asking that they confirm that they had instructions to accept service of the writ on behalf of the defendants. The defendants are residents of Western Australia. The solicitors (Arnold Bloch Leibler) were not. On 19 March 2014, Arnold Bloch Leibler replied, 'We confirm we have instructions to accept service on behalf of Mr Rhodes and Mr Butlin'. In those circumstances, I was surprised that the objection under the Service and Execution of Process Act was taken when service was effected by sending the writs to their solicitors. Neither of the defendants' objections was pressed at the hearing
5 At the same hearing, I considered an application on behalf of another director, John Carlton Young, the first defendant in the proceedings, for orders setting aside the service of the writ on him. Mr Young's case was, in my opinion, quite different as he had entered an unconditional appearance. Even setting aside the decision of the registrar would not have any practical effect.
6 Because the matter has been unusually complicated, and the reasons were comparatively long, I published my reasons and invited the parties to bring in orders reflecting the findings. Perhaps it should have been anticipated, but the parties have not agreed what orders follow from my reasons. The plaintiffs and the second and third defendants (Mr Rhodes and Mr Butlin) have filed submissions on the proposed orders, which I will deal with on the papers.
7 Because Mr Rhodes and Mr Butlin are the only defendants relevant in these reasons, I will refer to them collectively as the defendants. The orders regarding Mr Young are a separate matter and are not part of these reasons.
8 The plaintiffs very helpfully compiled a minute of proposed orders which shows the areas of agreement and disagreement. Some of the proposed orders are agreed. On the defendants' chamber summons, it is agreed that I should order:
1. Pursuant to O 58 r 23 as made applicable by O 59 r 7 of the Rules, the order of Registrar C Boyle made on 24 September 2013, so far as it relates to the named second and third defendants, extending the validity of the writ of summons dated 26 September 2012 to 31 March 2014 be set aside.
2. Service of the writ on the named second and third defendants on 31 March 2014 is declared invalid by operation of O 7 r 1 (1) of the Rules.
9 The areas of dispute on the defendants' chamber summons are: first, whether the chamber summons should be otherwise dismissed; second, (in broad terms) whether and to what extent there should be an apportionment of the costs of the chamber summons by reference to particular paragraphs of the chamber summons. The defendants seek an order that the plaintiffs pay the costs of the chamber summons to be taxed unless agreed or fixed by the court. The plaintiffs propose that a costs order against them should relate only to par 1 of the summons.
10 The defendants do not press for an order dismissing the proceedings against them. They assert that relief remains available to them but do not press it so as to avoid cost of argument when that relief is unnecessary.
11 Similar areas of dispute arise on the plaintiffs' chamber summons: the defendants propose that the summons be dismissed in so far as it seeks orders against them and that the plaintiffs pay the costs on the summons; the plaintiffs do not agree with the order dismissing the summons and propose that there be no order as to costs.
The balance of the defendants' chamber summons
12 The defendants submit that, as a matter of substance, they were wholly successful in the result of the application. Their success in respect of the orders setting aside the decision of the registrar rendered the balance of the relief they claimed otiose. It is, in my opinion, appropriate to dismiss the balance of the defendants' chamber summons, on that basis.
The plaintiffs' chamber summons
13 The plaintiffs submit that this summons should not be dismissed on the basis that, in my judgment, I simply said that their applications 'fall away'. They submit that I did not dismiss, and indeed did not determine, their application. The plaintiffs' application, however, was to regularise the service of the writ where the defendants had filed conditional appearances challenging the ex parte decision to extend the writ. The finding that the plaintiffs had not justified the delay in service during its period of validity, and the decision to extend it should be set aside, is the reason why orders were not made on the plaintiffs' summons. Orders correcting an irregularity in service, or extending the time for service, could be of no effect.
14 The order should be that the plaintiffs' summons is dismissed to the extent that it seeks orders in respect of these defendants.
Costs
15 The defendants seek orders that the plaintiffs pay the cost of both summonses. The plaintiffs seek orders that costs be limited to par 1 of the defendants' summons, and that otherwise there be no order as to costs. For these reasons I am satisfied that the defendants should have the costs of the applications.
16 The principles relevant to these questions are not controversial:
1. Costs of and incidental to all proceedings in court are in the discretion of the court: s 37(1) of the Supreme Court Act 1935 (WA). The discretion is not unfettered, but must be exercised judicially: see, for example Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103 (S) [11] - [12].
2. The Rules provide guidance about the sound exercise of the discretion. In particular, O 66 r 1(1) provides that subject to the express provisions of any statute and of the rules of court, and without limiting the generality of the discretion to make a costs order, 'the Court will generally order that the successful party to any action or matter recovers his costs'.
3. Order 66 r 1(3) provides that, '[w]here a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs the Court may order such party to pay the costs of such issue or issues'. These rules reflect the general law.
4. 'Notwithstanding O 66 r 1(3), courts are generally reluctant to apportion costs on the basis of success or failure on particular issues arising in the course of the trial': Keet v Ward [2011] WASCA 139 [18] - [20].
5. Success in proceedings is to be determined by the 'reality' of the circumstances involved: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [70] (McHugh J); Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394, 401.
17 The copies of the writ which the plaintiffs attempted to serve on 31 March 2014 were not stamped as required by O 7 r 1(3). The prescribed notices required by the Service and Execution of Process Act were not attached. At least as regards the noncompliance with O 7, the plaintiffs were seeking an order curing an irregularity of their own making.
18 On 24 April 2014, Arnold Bloch Leibler wrote regarding the service, referring to the irregularity in failure to comply with O 7 r 1(3) of the Rules. Further correspondence followed between the solicitors. On 30 April 2014, Arnold Bloch Leibler gave notice that the defendants would apply to set aside the order extending the validity of the writ. On 1 May 2014, the plaintiffs brought an application to cure the irregularity or grant an extension of time for valid service to be effected. On 2 May 2014, the defendants each entered a conditional appearance.
19 By O 12 r 6 (2), having entered a conditional appearance, each defendant was required to apply forthwith to have the question raised by the conditional appearance decided. Had he not done so within 14 days, the conditional appearance would, unless otherwise ordered, become and operate as an unconditional appearance.
20 Once the competing summonses were before the court, the critical issue was the application to set aside the ex parte decision of the registrar. That was not how the plaintiffs wished the matter to proceed; they clearly regarded it as a much more limited exercise. But having regard to the decision in Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561, and the discussion in Popovic v Panagoulias [2014] WASCA 86 [54] - [55], it was necessary to consider the factors relevant to setting aside the ex parte decision. The complicated factual background, including the proceedings in Victoria and the application heard at the same time regarding the proceedings instituted against PricewaterhouseCoopers, resulted in a long and complicated hearing for an interlocutory application. But that was not the result of any unreasonable conduct on the part of the defendants.
21 Further, it was not unreasonable for the defendants to not concede the plaintiffs' application while the decision to extend the validity of the writ was under challenge. It would have been pointless for them to do so.
22 I also accept the submission made on behalf of the defendants that the issues they raised regarding defects in service were purely legal issues and did not add substantively to the hearing time. I cannot say anything about the preparation.
23 No argument has been put to me for apportionment of the costs of the hearing on any other basis.
Orders
24 Accordingly, I will make the following orders. On the defendants' chamber summons filed on 16 May 2014:
1. Pursuant to O 58 r 23 as made applicable by O 59 r 7 of the Rules, the order of Registrar C Boyle made on 24 September 2013, so far as it relates to the named second and third defendants, extending the validity of the writ of summons dated 26 September 2012 to 31 March 2014 be set aside.
2. Service of the writ on the named second and third defendants on 31 March 2014 is declared invalid, by operation of O 7 r 1(1) of the Rules.
3. The chamber summons is otherwise dismissed.
4. The plaintiffs pay the costs of the named second and third defendants of the summons, such costs to be taxed unless agreed or fixed by the court.
25 On the plaintiffs' chamber summons filed on 1 May 2014:
1. The chamber summons is dismissed in so far as it seeks orders and/or directions in respect of the named second and third defendants.
2. The plaintiffs pay the costs of the named second and third defendants of the summons, such costs to be taxed unless agreed or fixed by the court.
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