Hazeldine Pty Ltd v Remote Camps Australia Pty Ltd - [2023] WADC 134

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   HAZELDINE PTY LTD -v- REMOTE CAMPS AUSTRALIA PTY LTD [2023] WADC 134
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   2 DECEMBER 2022
DELIVERED          :   16 NOVEMBER 2023
FILE NO/S:   CIV 2008 of 2010
BETWEEN:   HAZELDINE PTY LTD
Plaintiff

AND

REMOTE CAMPS AUSTRALIA PTY LTD
Defendant

Catchwords:

Practice - Fund held by the court upon trust as security for a respondent's costs of an appeal - No order for the costs of the appeal

Legislation:

Corporations Act 2001 (Cth), s 601AD(2)

Result:

The fund held by the court on trust be remitted to the Australian Securities & Investments Commission

Representation:

Counsel:

Plaintiff	:	Mr J G Kitto
Defendant	:	Mr A P Rumsley (appearing as amicus)

Solicitors:

Plaintiff	:	Kitto & Kitto
Defendant	:	Allan Rumsley Commercial Disputes Lawyer

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HARMAN:

On 1 February 2011 a determination was made that the defendant have conditional leave to defend the claim. The condition was expressed by an order made on 15 February 2011. On 14 April 2011, due to the failure of the defendant to comply, judgment was entered in favour of the plaintiff with costs.
On 25 October 2011 Sweeney DCJ dismissed an appeal and awarded the respondent its costs. The allocator for the costs of the appeal was signed on 1 February 2012.
On 26 October 2011 the defendant had filed notice of an appeal that it put to the order of 15 February 2011. The appeal had been listed for directions on 17 January 2012. The hearing had been adjourned to 7 February 2012. It was then adjourned to 21 February 2012 when according to the fiat of a registrar, the parties were ordered to provide their availability for the purpose of listing the appeal. On 8 March 2012 the appeal was listed for hearing before a judge on 11 May 2012.
By application dated 9 February 2012 the plaintiff sought an order for payment of $12,000 into court as security for its costs of the appeal.
By notice of payment into court dated 28 February 2012 the defendant expressed that it complied with an order made on 21 February 2012 that it pay $5,000 into court as security for the costs of the appeal from the determination made on 15 February 2012. The defendant recorded the last date in error; it should read 15 February 2011. The order of 21 February 2012 to which the defendant referred had not then and has not since been extracted.
A note that immediately precedes the relevant paragraph of the fiat at least suggests that its content reflected at least the effect of a minute of consent. The note records that the minute of consent had not then been on the file. It is not now on the file and there is no record of it ever having been filed.
The relevant paragraph of the fiat states:
D to pay the sum of $5000 into Court as security for costs within 7 days.
Although it is open to consider that had that paragraph been extracted in the form of an order it would reflect the terms of the fiat, there is scope to consider that it would include reference to the respondent's costs of the appeal commenced by the notice filed on 26 October 2011 and that until further order, the fund would be held by the court on behalf of the appellant.
Another fiat recorded on the same hearing sheet at a point preceding the note records dismissal of the defendant's application dated 10 February 2012 by which it sought to stay enforcement of the judgment.
According to the transcript of the hearing before Scott DCJ on 11 May 2012, the hearing lasted from 2.38 pm to 4.15 pm. Both the transcript and an associate's record of the hearing reveal that the decision in the appeal commenced on 26 October 2011 was reserved.
There is an associate's record of an attendance before Scott DCJ on 18 May 2012. It states that some unspecified matter was adjourned sine die and that it would be relisted at short notice.
But for that record and a copy of an email to the respondent from the associate to Scott DCJ dated 17 May 2012 that may account for the listing on 18 May 2012, there is nothing else recorded on the file that relates to the appeal commenced on 26 October 2011. There is nothing to indicate that any reserved decision has ever been handed down. Scott DCJ has now been retired for some time.
The relevant part of the email addressed to the solicitor for the respondent is as follows:
His Honour has asked me to seek confirmation from you whether your client consents to this appeal being determined on the basis put forward by counsel for the appellant that is his Honour is to accept the findings and reasons of the deputy registrar in considering whether the order of 15 February 2011 reflected same-in lieu of a hearing de novo as to the merits of the O14 Application.
His Honour now recalls not seeking that confirmation when the matter was heard on 11 May 2012 but assumed that to be your clients position.
If that is not the case his Honour would wish the relist the matter as soon as possible. (sic)
During the period between the date that the notice of appeal was filed and the hearing before Scott DCJ, six fiats record references to costs. On 21 February 2012 separate references were made by each fiat for the costs of the application for a stay and the application for payment into court. The former was against the defendant, the latter, in the cause. As the latter has not been extracted it is unclear whether 'the cause' had been intended to be a reference to the appeal. On each of the other occasions, that is, on 17 January 2012; 7 February 2012; 17 February 2012, and 8 March 2012, costs were reserved. There is nothing that suggests that any determination has been made for either the costs of the appeal or any of the costs reserved.
There is nothing to indicate that the plaintiff's entitlement to the costs of the action has been quantified. Other than the fiat of 21 February 2012 and the defendant's notice, there is no record that relates to the fund held by the court other than that generated by the court in the course of its receipt. It had not been located at the time of the hearing. It specifies that the drawer of the cheque by which the fund was established as Rapid Deployment Solutions Pty Ltd and that the fund had been received other than as a payment into court.
In February 2019 the court had been in the process of giving some attention to funds that it held on trust. The file reveals that the parties to whom questions were put included the parties to the action. It is open to consider that from the perspective of the court, despite or perhaps due to the want of a result in the appeal, by that time, upon an administrative view, the action had somehow been concluded.
By letter dated 14 March 2022 addressed to the solicitors for the parties they were informed as follows:
I advise that the District Court is currently undertaking a review of its trust account, and investigating any unclaimed monies.
I note there is presently an amount of $5,000.00 in relation to the above mentioned matter, that was paid into Court by the second named Defendant on 28 February 2012 (sic).
The Registrar has requested that you provide the Court with a Consent Order in order for the funds to be dispersed to the correct party within 7 Days. Please note that failure to do so will result in this matter being listed for a Directions hearing before the Registrar.
The condition imposed by the letter was not met and a directions hearing was listed. On 25 October 2022 an order was made that the question 'how to deal with $5,000 in the District Court trust' be listed for hearing and that Mr Rumsley have leave to appear as amicus.
Mr Rumsley had previously represented the defendant. It is open to consider that the status then conferred upon him had been due to the court being satisfied that his client had been deregistered. That conclusion had been open on the signed statement of Gregory Browne filed on 5 September 2022, by which he identifies himself as an interested party in relation to notice of payment into court. He states that he had been a director of the defendant until it was deregistered on 16 October 2016. He produces a record provided by the Australian Securities & Investments Commission to that effect which also records that the reason for deregistration had been the result of some unspecified administrative process instituted by the Commission.
Browne also states that he had arranged for the payment into court and that he has not been repaid. He proposes that the fund be paid to the trust account of Mr Rumsley to be held on his behalf.
Although the statements of Browne are not evidence, the hearing established by the order of 25 October 2022 is not of an interlocutory application.
Mr Kitto introduced himself as representing the plaintiff and applicant. It is evident from a record of Australian Securities & Investments Commission, Mr Kitto's submissions and Brown's statement, that the plaintiff had been deregistered on 21 July 2021. Accordingly Mr Kitto could not represent the plaintiff. As for his reference to an applicant, the application was oral; was of Totalian Pty Ltd and was to the effect that it be substituted as the judgment creditor or perhaps the respondent, to allow it to seek recourse to the fund held by the court to satisfy part of the amount for which the allocator had been signed on 1 February 2012. Mr Kitto also proposed that the appellant had abandoned the appeal before Scott DCJ. At least each of those propositions were features of an application put by Mr Kitto to adjourn to enable Brendan Stanley Hazeldine to depose to the content of his unsworn affidavit that had been filed prior to the hearing.
It was foreshadowed that the applicant would present a case that in commencing the action the plaintiff had been the trustee of a trust of which it is now trustee. The applicant would contend that the fund held on trust by the court had been established to enable recourse to be had for the benefit of the trust of which the plaintiff had been trustee and that in the circumstances, it ought to be considered to be entitled to such recourse for the beneficiaries of the trust.
Apart from contesting the proposition that Mr Kitto represented the plaintiff, Mr Rumsley presented submissions that moved the focus of the exercise in which Mr Kitto was engaged from the application to adjourn to the proposition that regardless the capacity in which the plaintiff had engaged in the litigation, any entitlement generated by the payment into court had been established in the plaintiff rather than the beneficiaries of the trust.
The submission that the allocator signed on 1 February 2012 would bear upon the question of the beneficial entitlement to the fund is unfounded as the fund had been generated as security for any costs generated by the appeal commenced on 26 October 2011, not of the appeal for which the allocator had been signed.
Regardless whether it is accepted that in commencing the action the plaintiff had undertaken the task as trustee, it is safe to conclude that there is no basis to consider that prior to its deregistration it had any interest in the fund. It would not have had such an interest until an order generating its entitlement to the fund or part of the fund had been made. The history of the appeal generates a sufficient measure of confidence in the conclusion that no such order will now be made.
Once the court became aware that the defendant had been deregistered, the fund that it held on behalf of the defendant became subject to a relevant provision of the Corporations Act 2001 (Cth). That provision could not be defeated by an order made in the foreshadowed application. Nothing to which Hazeldine may depose could promote the proposition that Totalian Pty Ltd would be advanced in any case for payment of the fund to it.
The only other consideration that emerges is that generated by the fact that the fund originated in the account of Rapid Deployment Pty Ltd, an entity which when deregistered had changed its name to Field Development Solutions Pty Ltd. According to a search undertaken by the court of the record of the Australian Securities & Investments Commission, it was deregistered on 16 September 2019.
Although there is nothing to indicate that the defendant had been deregistered at the conclusion of a process of liquidation, there is scope to consider that prior to its deregistration, Rapid Deployment Pty Ltd had the opportunity to attend to any claim that it had for repayment by the defendant.
In accordance with s 601AD(2) of the Corporations Act, as a consequence of the deregistration of the defendant, the fund held on trust by the court for the defendant should be paid to the Australian Securities & Investments Commission.
There is no reason to reconvene in order to hand down these reasons. A copy will be sent to each of Mr Rumsley and Mr Kitto.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MD
Associate to Registrar
14 NOVEMBER 2023