IMM Direct Holdings Ltd v Woodley, John Staniforth

[1995] FCA 892

IN THE FEDERAL COURT OF AUSTRALIA )

)No. NG 3064 of 1995

NEW SOUTH WALES DISTRICT REGISTRY )       NG 3065 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:IMM DIRECT HOLDINGS LIMITED

Applicant

AND:JOHN STANIFORTH WOODLEY & ORS t/as WESTON WOODLEY & ROBERTSON (in the matter of IMM DIRECT HOLDINGS LTD ACN 002 578 449

Respondent

CORAM:WILCOX J

PLACE:    SYDNEY
DATE:     31 OCTOBER 1995

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:  The issues relevant to the exercise of the Court's discretion as to costs have been canvassed in discussion with counsel.  I do not propose to set out any elaborate reasons.  I am of the opinion that there ought to be an order for costs in each matter but I think that this order ought to be limited to costs incurred after 1 May 1995.  I say that because the particulars of the cross-claim that were advanced in the affidavit of Mr Todd of 10 February 1995 were in some respects sparse and vague.  It is true that some details of the claim were specific, but it is not clear to me to what extent these were of great significance.  However, any deficiency that might have existed in there being a demonstration of a genuine
dispute was cured by the affidavit of 28 April 1995 which was filed on 1 May. 

I do not accept the submission that it was not until the affidavit of 7 July that it became apparent that there was a genuine dispute.  It is true that Mr Todd referred to some further evidentiary material in that affidavit, but by that time it was manifestly clear that there was a genuine dispute.  I, of course, say nothing as to whether or not the matters raised on behalf of the respondent companies by way of cross-claim are well based; that is not a matter that has been investigated in this proceeding.  But it is apparent to me that by 1 May any objective reader of the file would have come to the conclusion that there was a genuine dispute as to whether there was a debt owed by the present applicant companies which exceeded the amount owing on any cross‑claim. Nothing significant happened between 1 May and the present time and it is conceded today, by the respondents' consent to the Court setting aside the statutory demands, that there is today a genuine question as to the existence of the appropriate debt. 

The order that I make in each matter is as follows. By consent I set aside the statutory demand, and, on the application of the applicant in each case, I make an order that the respondents pay the applicant's costs of the proceeding; but I order that such costs be limited to those incurred after 1 May 1995.

I certify that this and the preceding one (1) pages
are a true copy of the Reasons for Judgment
of the Honourable Justice Wilcox.

Associate:

Dated:31 October 1995

APPEARANCES

Counsel for the Applicant:          J Nichols

Solicitors for the Applicant:             Cowley Hearne

Counsel for the Respondent:               R E Dubler

Solicitors for the Respondent:      Esplins?

Dates of hearing:  31 October 1995