Hancock v American Express Australia Ltd

[2010] FCA 333

FEDERAL COURT OF AUSTRALIA

Hancock v American Express Australia Ltd [2010] FCA 333

Citation:		Hancock v American Express Australia Ltd [2010] FCA 333
Parties:		GEOFFREY TRENT HANCOCK v AMERICAN EXPRESS AUSTRALIA LTD (ACN 108 952 085), C M WIGGINS & J R WIGGINS T/AS AIM EQUIPMENT (ABN 45 540 169 759), AUSTAGE SYDNEY PTY LTD (ACN 063 612 475), THE TRUSTEE FOR THE MURPHY FAMILY TRUST T/AS BRAEMAR GRAPHIC REPRODUCTIONS (ABN 63 788 339 709), AEG OGDEN (CONVEX) PTY LTD T/AS BRISBANE CONVENTION & EXHIBIT CENTRE (ACN 058 298 374), CABCHARGE AUSTRALIA LTD (ABN 99 001 958 390), CHRIS MORSLEY CONSULTING ATF MORSLEY FAMILY TRUST (ABN 76 518 438 657), COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124), STELLA TRAVEL SERVICES (AUSTRALIA) PTY LTD T/AS CONCORDE INTERNATIONAL TRAVEL (ACN 003 237 296), CORPORATE EXPRESS AUSTRALIA LTD (ACN 000 728 398), DINERS CLUB PTY LTD (ACN 004 343 051), SOUTHERN CROSS PROPERTY MANAGEMENT PTY LTD T/AS LANWORKS PTY LTD (ACN 098 323 230), EVENTIONS (AUSTRALIA) PTY LTD (ACN 100 532 385), HAYS SPECIALIST RECRUITMENT (AUSTRALIA) PTY LTD T/AS HAYS ACCOUNTANCY PERSONNEL (ACN 001 407 281), OFFICE OF STATE REVENUE, ROBINSON LEGAL PTY LTD (ATF THE ROBINSON ADMINISTRATION TRUST T/AS AGRO NOMINEES PTY LTD ATF THE LEGAL ROBINSON LEGAL ADMINISTRATION TRUST) (ACN 002 842 408), SPOTLESS SERVICES AUSTRALIA LIMITED (ACN 005 309 320), SHELDON COMMERCIAL INTERIORS PTY LTD T/AS SHELDON COMMERCIAL INTERIORS (ACN 051 140 955), DARLING HARBOUR CONVENTION & EXHIBITION PTY LTD and TNT AUSTRALIA PTY LTD T/AS TNT EXPRESS (ACN 000 495 269)
File number:		NSD 55 of 2009
Judge:		EDMONDS J
Date of judgment:		7 April 2010
Legislation:		Corporations Act 2001 (Cth) 588FC Federal Court Rules O 29 r 2
Date of hearing:	7 April 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	4
Solicitor for the Applicant:	Parry Carroll Lawyers
Solicitor for the First Respondent:	Kemp Strang
Solicitor for the Sixth Respondent:	Madgwicks
Solicitor for the Eleventh Respondent:	Truman Hoyle Lawyers
Solicitor for the Thirteenth Respondent:	HWL Ebsworth Lawyers
Solicitor for the Twenty-Third Respondent:	Crown Solicitors

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 55 of 2009

BETWEEN:

GEOFFREY TRENT HANCOCK
Applicant

AND:

AMERICAN EXPRESS AUSTRALIA LTD (ACN 108 952 085)
First Respondent

C M WIGGINS & J R WIGGINS T/AS AIM EQUIPMENT (ABN 45 540 169 759)
Third Respondent

AUSTAGE SYDNEY PTY LTD (ACN 063 612 475)
Fourth Respondent

THE TRUSTEE FOR THE MURPHY FAMILY TRUST T/AS BRAEMAR GRAPHIC REPRODUCTIONS (ABN 63 788 339 709)
Sixth Respondent

AEG OGDEN (CONVEX) PTY LTD T/AS BRISBANE CONVENTION & EXHIBIT CENTRE (ACN 058 298 374)
Seventh Respondent

CABCHARGE AUSTRALIA LTD (ABN 99 001 958 390)
Eighth Respondent

CHRIS MORSLEY CONSULTING ATF MORSLEY FAMILY TRUST (ABN 76 518 438 657)
Ninth Respondent

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
Tenth Respondent

STELLA TRAVEL SERVICES (AUSTRALIA) PTY LTD T/AS CONCORDE INTERNATIONAL TRAVEL (ACN 003 237 296)
Eleventh Respondent

CORPORATE EXPRESS AUSTRALIA LTD (ACN 000 728 398)
Twelfth Respondent

DINERS CLUB PTY LTD (ACN 004 343 051)
Thirteenth Respondent

SOUTHERN CROSS PROPERTY MANAGEMENT PTY LTD T/AS LANWORKS PTY LTD (ACN 098 323 230)
Fourteenth Respondent

EVENTIONS (AUSTRALIA) PTY LTD (ACN 100 532 385)
Fifteenth Respondent

HAYS SPECIALIST RECRUITMENT (AUSTRALIA) PTY LTD T/AS HAYS ACCOUNTANCY PERSONNEL (ACN 001 407 281)
Eighteenth Respondent

OFFICE OF STATE REVENUE
Twenty-Third Respondent

ROBINSON LEGAL PTY LTD (ATF THE ROBINSON ADMINISTRATION TRUST T/AS AGRO NOMINEES PTY LTD ATF THE LEGAL ROBINSON LEGAL ADMINISTRATION TRUST) (ACN 002 842 408)
Twenty-Fifth Respondent

SPOTLESS SERVICES AUSTRALIA LIMITED (ACN 005 309 320)
Twenty-Sixth Respondent

SHELDON COMMERCIAL INTERIORS PTY LTD T/AS SHELDON COMMERCIAL INTERIORS (ACN 051 140 955)
Twenty-Eighth Respondent

DARLING HARBOUR CONVENTION & EXHIBITION PTY LTD
Thirtieth Respondent

TNT AUSTRALIA PTY LTD T/AS TNT EXPRESS (ACN 000 495 269)
 Thirty-Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	7 APRIL 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The first respondent forthwith pay the applicant’s costs of the insolvency issue thrown away or unnecessarily incurred by the first respondent’s conduct in respect of that issue on and from 22 April 2009 up to and including 4 March 2010.

2.The applicant file and serve Points of Claim by 21 April 2010.

3.The respondents file and serve Points of Defence by 12 May 2010.

4.The parties agree categories of document for discovery by 26 May 2010.

5.The parties exchange verified Lists of Documents by 16 June 2010.

6.The parties inspect discovered documents by 30 June 2010.

7.The matter be listed for further directions on 21 July 2010.

8.Liberty to apply on 3 days’ notice.

9.The applicant notify any respondent not present in court on 7 April 2010 of these orders.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 55 of 2009

BETWEEN:

GEOFFREY TRENT HANCOCK
Applicant

AND:

AMERICAN EXPRESS AUSTRALIA LTD (ACN 108 952 085)
First Respondent

C M WIGGINS & J R WIGGINS T/AS AIM EQUIPMENT (ABN 45 540 169 759)
Third Respondent

AUSTAGE SYDNEY PTY LTD (ACN 063 612 475)
Fourth Respondent

THE TRUSTEE FOR THE MURPHY FAMILY TRUST T/AS BRAEMAR GRAPHIC REPRODUCTIONS (ABN 63 788 339 709)
Sixth Respondent

AEG OGDEN (CONVEX) PTY LTD T/AS BRISBANE CONVENTION & EXHIBIT CENTRE (ACN 058 298 374)
Seventh Respondent

CABCHARGE AUSTRALIA LTD (ABN 99 001 958 390)
Eighth Respondent

CHRIS MORSLEY CONSULTING ATF MORSLEY FAMILY TRUST (ABN 76 518 438 657)
Ninth Respondent

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
Tenth Respondent

STELLA TRAVEL SERVICES (AUSTRALIA) PTY LTD T/AS CONCORDE INTERNATIONAL TRAVEL (ACN 003 237 296)
Eleventh Respondent

CORPORATE EXPRESS AUSTRALIA LTD (ACN 000 728 398)
Twelfth Respondent

DINERS CLUB PTY LTD (ACN 004 343 051)
Thirteenth Respondent

SOUTHERN CROSS PROPERTY MANAGEMENT PTY LTD T/AS LANWORKS PTY LTD (ACN 098 323 230)
Fourteenth Respondent

EVENTIONS (AUSTRALIA) PTY LTD (ACN 100 532 385)
Fifteenth Respondent

HAYS SPECIALIST RECRUITMENT (AUSTRALIA) PTY LTD T/AS HAYS ACCOUNTANCY PERSONNEL (ACN 001 407 281)
Eighteenth Respondent

OFFICE OF STATE REVENUE
Twenty-Third Respondent

ROBINSON LEGAL PTY LTD (ATF THE ROBINSON ADMINISTRATION TRUST T/AS AGRO NOMINEES PTY LTD ATF THE LEGAL ROBINSON LEGAL ADMINISTRATION TRUST) (ACN 002 842 408)
Twenty-Fifth Respondent

SPOTLESS SERVICES AUSTRALIA LIMITED (ACN 005 309 320)
Twenty-Sixth Respondent

SHELDON COMMERCIAL INTERIORS PTY LTD T/AS SHELDON COMMERCIAL INTERIORS (ACN 051 140 955)
Twenty-Eighth Respondent

DARLING HARBOUR CONVENTION & EXHIBITION PTY LTD
Thirtieth Respondent

TNT AUSTRALIA PTY LTD T/AS TNT EXPRESS (ACN 000 495 269)
Thirty-Second Respondent

JUDGE:	EDMONDS J
DATE:	7 APRIL 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On the last occasion, I heard argument on a dispute that has arisen between the applicant, who is the liquidator of Augment Communications Pty Limited (‘Augment’), and the first respondent, American Express Australia Limited (‘Amex’), as to the appropriate order as to costs, following the declaration made by the Court on 17 March 2010 that Augment was insolvent throughout the relation back period from 23 September 2005 to 23 March 2006, under s 588FC of the Corporations Act 2001 (Cth). Ultimately, the declaration was not opposed by Amex although, up until 5 March 2010, Amex had, since approximately 22 April 2009, consistently adopted the position that the insolvency of Augment during the said relation back period was in issue.

2. The applicant’s position, as argued on the last occasion, is that having regard to Amex’s changed position coming, as it did, so close to the date fixed for the hearing of the insolvency issue as a preliminary and separate issue, pursuant to O 29, rule 2 of the Federal Court Rules, the applicant should have his costs thrown away or unnecessarily incurred because of Amex’s conduct.  Amex’s position is that the costs of determining the insolvency issue should be costs in the cause.  According to Amex, there should be no other costs order at this stage because if all issues had been heard together and the applicant succeeded on the insolvency issue, but not on another issue, in the normal course the applicant would not get his costs. 

3. In the exercise of my discretion on the issue of costs, I have had regard to the following matters and documents: 

   1.First, the history of the proceeding and the fact that from the very outset it was always the intention of the parties that the insolvency issue, vis à vis all 33 respondents, other than the twenty-fifth respondent, should be determined as a preliminary and separate issue.  And, in that regard, I refer to the orders made on 22 April 2009. 

   2.Second, the delay that has been occasioned in the determination of not only the insolvency issue, but all issues, by the position taken by Amex and at the last moment abandoned. 

   3.Third, the report of BDO Kendalls (NSW), Sydney (Mr Doug Meredith), dated 8 June 2007. 

   4.Fourth, the report of PPB Forensics (Mr Paul Russell), dated 7 September 2009; and the delay in the filing of this report as evidence upon which Amex proposed to rely but which, at the end of the day, did not rely. 

   5.Fifth, the report of Mr Doug Meredith, dated 12 November 2009, in response to Mr Russell’s report in 4 above. 

   6.Sixth, the report of Mr Barry Raymond Cook, dated 8 December 2009. 

   7.Seventh, the time that elapsed between the service of Mr Meredith’s report in 5 above on 17 November 2009, and the service of Mr Cook’s report on 10 December 2009, and the notification by Amex’s solicitors to the applicant’s solicitors on 5 March 2010 that Amex no longer put the insolvency of Augment in issue. 

4. Having regard to these matters, I think the applicant should have its costs thrown away or unnecessarily incurred by Amex’s conduct on the insolvency issue payable forthwith.  The order of the Court will be the first respondent pay the applicant’s costs of the insolvency issue thrown away or unnecessarily incurred by the first respondent’s conduct in respect of that issue on and from 22 April 2009 up to and including 4 March 2010, payable forthwith. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        12 April 2010