HPM Pty Ltd v Fear

Case [2002] WASCA 249 (S)


HPM PTY LTD -v- FEAR & ORS [2002] WASCA 249 (S)



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2002] WASCA 249 (S)
THE FULL COURT (WA)
Case No:FUL:83/20012 AUGUST &
9 SEPTEMBER 2002
Coram:MALCOLM CJ
MURRAY J
STEYTLER J
9/09/02
20/11/02
9Judgment Part:1 of 1
Result: Mr Blakeley ordered to bear respondents' costs of appeal personally
B
PDF Version
Parties:HPM PTY LTD
CHARLES ANTHONY CANDLIN FEAR
RESI-STATEWIDE MORTGAGE CORPORATION LTD
ROBERT CLAUDE COOK
TERENCE CORNELIUS McMANUS
ROBERT HENRI DE BUF
PATRICIA ANNE DE BUF
REGINALD SARSFIELD FINN
ELIZABETH ROSE FINN
DONALD GEORGE LYSTER
LEONE BEATRICE LYSTER
JOHN SELSMARK
ROGER LLOYD GEORGE RICHARD-COOMBES
IDA ELEANOR RICHARD-COOMBES
GRAEME CAMPBELL REYNOLDS
LESLEY HANNAH REYNOLDS
JOSEPH COCI
HELEN JOY COCI
ERNEST RAMPELLINI
JENNIFER ANNE RAMPELLINI
PETER JOE CHITTENDEN
MICHAEL SKUBA
MICHAEL CYRIL HALPIN
GEORGE HUGH MARGETTS
GWENDOLINE MARY MARGETTS
TOLEEN NOMINEES PTY LTD
LAVIN NOMINEES PTY LTD
TUDOR COURT INVESTMENTS PTY LTD
MacDOUGALL PTY LTD
OREGON NOMINEES PTY LTD

Catchwords:

Costs
Award of costs against non-party
Circumstances in which an order of that kind might be made
Where non-party managing the litigation has an interest in the subject of the litigation
Relevance of failure to apply for security for costs or to give timely warning of proposed application
Whether costs should be awarded on indemnity basis
Turns on own facts

Legislation:

Corporations Act, s 242
Corporations Law, s 237
Rules of the Supreme Court 1971 (WA), O 4 r 3(2)
Supreme Court Act 1935 (WA), s 37(1)

Case References:

Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965
Carborundum Abrasives Pty Ltd v Bank of New Zealand (No 2) [1992] 3 NZLR 757
Duskwood Pty Ltd v Bellara Willows Pty Ltd [2001] WASC 281
Flinn v Flinn [1999] 3 VR 712
In re Land and Property Trust Co Plc [1991] 1 WLR 601
Knight v FP Special Assets Ltd (1992) 174 CLR 178
National Justice Compania Naviera SA v Prudential Assurance Co Ltd (No 2) [2000] 1 WLR 603
Symphony Group Plc v Hodgson [1994] QB 179
Vestris v Cashman (1998) 72 SASR 449

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397
Re Crittendon; Ex parte Law Institute of Victoria [1958] VR 101
Re Malley SM; Ex parte Gardner [2001] WASCA 83

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HPM PTY LTD -v- FEAR & ORS [2002] WASCA 249 (S) CORAM : MALCOLM CJ
    MURRAY J
    STEYTLER J
HEARD : 2 AUGUST &
    9 SEPTEMBER 2002
DELIVERED : 9 SEPTEMBER 2002 SUPPLEMENTARY
DECISION : 20 NOVEMBER 2002 FILE NO/S : FUL 83 of 2001 BETWEEN : HPM PTY LTD
    Appellant

    AND

    CHARLES ANTHONY CANDLIN FEAR
    First Respondent

    RESI-STATEWIDE MORTGAGE CORPORATION LTD
    Second Respondent

    ROBERT CLAUDE COOK
    TERENCE CORNELIUS McMANUS
    ROBERT HENRI DE BUF
    PATRICIA ANNE DE BUF
    REGINALD SARSFIELD FINN
    ELIZABETH ROSE FINN
    DONALD GEORGE LYSTER
    LEONE BEATRICE LYSTER

(Page…

Continue reading HPM Pty Ltd v Fear

Sign in free to access the full text

Details
AGLC
HPM Pty Ltd v Fear [2002] WASCA 249 (S)
Case
[2002] WASCA 249 (S)
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, HPM Pty Ltd sought an order that the respondents' costs of appeal be borne by a non-party, Mr Blakeley. The appeal arose from a decision made in the Family Court regarding a dispute between HPM Pty Ltd and the respondents concerning the sale of a property. The primary issue was whether the court could order Mr Blakeley, who was managing the litigation for the respondents, to bear the respondents' costs of appeal personally. Additionally, the court had to determine whether the costs should be awarded on an indemnity basis, given Mr Blakeley's interest in the subject matter of the litigation and his failure to apply for security for costs or to give timely warning of his proposed application.

The court examined the principles governing orders for costs against non-parties, particularly in cases where the non-party has an interest in the subject matter of the litigation. It noted that the power to order costs against a non-party is not exercised lightly and is generally reserved for cases where the non-party has acted unreasonably or where there are exceptional circumstances. The court found that Mr Blakeley's interest in the litigation and his failure to provide timely warnings about his application for security for costs constituted exceptional circumstances warranting an order for costs against him personally. Furthermore, the court held that an indemnity costs order was appropriate given the circumstances of the case.

Consequently, Mr Blakeley was ordered to bear the respondents' costs of appeal personally. The court emphasised that the decision was made on the specific facts of this case and did not set a precedent for broader application. The final orders included a direction that Mr Blakeley was to personally cover the respondents' costs of appeal, reflecting the court's view that his actions warranted such an outcome.

Orders

Orders of the court

Mr Blakeley ordered to bear respondents' costs of appeal personally

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.