Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Corrs Chambers Westgarth
[2013] WASCA 275 (S)
•13 JUNE 2014
HUNTINGDALE VILLAGE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) -v- CORRS CHAMBERS WESTGARTH [2013] WASCA 275 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 275 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:49/2013 | 24 MARCH 2014 | |
| Coram: | NEWNES JA MURPHY JA | 13/06/14 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | HUNTINGDALE VILLAGE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) SILKCHIME PTY LTD (RECEIVERS AND MANAGERS APPOINTED) VANNIN PTY LTD (RECEIVERS AND MANAGERS APPOINTED) WARWICK ENTERTAINMENT CENTRE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) PARAGON APARTMENTS (RECEIVERS AND MANAGERS APPOINTED) CORRS CHAMBERS WESTGARTH |
Catchwords: | Claim for indemnity costs Claim for costs against third party Turns on own facts |
Legislation: | Nil |
Case References: | Dunghutti Elders Counsel (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50; (2012) 200 FCR 154 Duskwood Pty Ltd v Bellara Willows Pty Ltd [2001] WASC 281 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 HPM Pty Ltd v Fear [2002] WASCA 249 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HUNTINGDALE VILLAGE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) -v- CORRS CHAMBERS WESTGARTH [2013] WASCA 275 (S) CORAM : NEWNES JA
- MURPHY JA
- First-named Appellant
SILKCHIME PTY LTD (RECEIVERS AND MANAGERS APPOINTED)
Second-named Appellant
VANNIN PTY LTD (RECEIVERS AND MANAGERS APPOINTED)
Third-named Appellant
WARWICK ENTERTAINMENT CENTRE PTY LTD (RECEIVERS AND MANAGERS APPOINTED)
Fourth-named Appellant
PARAGON APARTMENTS (RECEIVERS AND MANAGERS APPOINTED)
Fifth-named Appellant
AND
CORRS CHAMBERS WESTGARTH
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : HUNTINGDALE VILLAGE PTY LTD (RECEIVERS & MANAGERS APPOINTED) -v- CORRS CHAMBERS WESTGARTH (A FIRM) [2013] WASC 156
File No : LPA 4 of 2010
Catchwords:
Claim for indemnity costs - Claim for costs against third party - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
First-named Appellant : Mr G E Metaxas
Second-named Appellant : Mr G E Metaxas
Third-named Appellant : Mr G E Metaxas
Fourth-named Appellant : Mr G E Metaxas
Fifth-named Appellant : Mr G E Metaxas
Respondent : Mr B Dharmananda SC
Non-party : Ms M Coulson
Solicitors:
First-named Appellant : Metaxas & Hager
Second-named Appellant : Metaxas & Hager
Third-named Appellant : Metaxas & Hager
Fourth-named Appellant : Metaxas & Hager
Fifth-named Appellant : Metaxas & Hager
Respondent : Corrs Chambers Westgarth
Non-party : Coulson Legal
Case(s) referred to in judgment(s):
Dunghutti Elders Counsel (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50; (2012) 200 FCR 154
Duskwood Pty Ltd v Bellara Willows Pty Ltd [2001] WASC 281
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
HPM Pty Ltd v Fear [2002] WASCA 249 (S)
1 REASONS OF THE COURT: On 5 December 2013, the court refused the appellant's application for leave to appeal and dismissed the appellant's appeal in this matter. The respondent applies for costs on an indemnity basis, and for an order that a third party be jointly and severally liable for the costs of the appeal.
2 On the question of indemnity costs, the respondent says that the appeal was incompetent and that the appellant's submissions were wholly untenable. The respondent says that properly advised, the appellant should never have brought the appeal because it ought to have known that it had no chance of success. Reference was made to various authorities, including Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 401.
3 The force of the respondent's submission is blunted by the fact that the appellant raised arguments in support of the appeal as to the proper construction of the relevant rules of court which the respondent could not adequately deal with at the oral hearing of the leave application, and for which the court gave the respondent extra time to put on written submissions (ts 38, 20/9/13). Although, ultimately, the appeal was found to be incompetent, the apparent difficulty that the respondent had in dealing with the appellant's submissions indicates that the appeal was not as obviously untenable as the respondent now asserts. We would not order indemnity costs.
4 As to the question of costs against the third party, the respondent's arguments reduce in essence to the following propositions as they appear in its written outline:
11. The respondent is entitled to indemnity costs against [the third party] because he caused the case to be brought and maintained when, properly advised, no attempt should have been made to try and appeal against the Master's judgment.
12. The respondent seeks indemnity costs against [the third party] not just because he is a director and shareholder of the appellants. The respondent seeks such costs because he caused the appellants to bring and maintain a hopeless application when, properly advised, the application should not have been made.
5 It is convenient to note at the outset that the power to make an order for costs against a person who is not a party to proceedings is one which is rarely exercised. That is because it would ordinarily be unjust to make such an order: HPM Pty Ltd v Fear [2002] WASCA 249 (S) [4].
6 We were referred to a number of other authorities in this area, including Dunghutti Elders Counsel (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50; (2012) 200 FCR 154 [76] - [92] and Duskwood Pty Ltd v Bellara Willows Pty Ltd [2001] WASC 281 [20] - [27]. It is unnecessary to canvass the authorities in any detail. For present purposes, it is sufficient to note that the premise underlying the application for an order for costs against the third party is that the appeal and the arguments advanced in support of it were so hopeless that, properly advised, the appellant, and the third party, ought to have known that there was no chance of success. We have rejected that submission in relation to the application for indemnity costs. Other factors which point against the award of costs against the third party here include the fact that there was no application for security for costs brought in the appeal, and that there was no evidence that the second appellant, who it appears is no longer in receivership, could not meet the entirety of any costs order. Accordingly, the application for costs against the third party should also be dismissed.
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