In re. MTAA House Pty Ltd as Trustee for the MTAA Unit Trust
[2014] ACTSC 261
•2 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In re. MTAA House Pty Ltd as Trustee for the MTAA Unit Trust |
Citation: | [2014] ACTSC 261 |
Hearing Date: | 20 August 2014 |
DecisionDate: | 2 October 2014 |
Before: | Walmsley AJ |
Decision: | Costs awarded to the intervener, to be paid from trust assets on indemnity basis. |
Category: | Costs |
Catchwords: | PROCEDURE – COSTS – Recovery of costs – whether court has power to award costs in favour of intervener in judicial advice proceedings |
Legislation Cited: | Trustee Act 1925 (ACT) s 63 Trustee Act1925 (NSW) s 93 Statute Law Amendment Act (No 2) 2001 (ACT) |
Cases Cited: | Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653 Re Perpetual Investment Management Ltd [2011] NSWSC 615 |
Parties: | MTAA House Pty Ltd (Applicant) Dealer Support Services Pty Ltd (Intervener) |
Representation: | Counsel Mr M Orlov (Applicant) Mr C Archibald (Intervener) |
| Solicitors Minter Ellison Lawyers (MTAA House Pty Ltd) HWL Ebsworth Lawyers (Dealer Support Services Pty Ltd) | |
File Number: | ACTSC 267 of 2014 |
Walmsley J:
Background
This is an application for costs by a party claiming to be a beneficiary of a trust.
On 20 June 2014 MTAA House Pty Ltd (the trustee) filed an originating application seeking advice under section 63 Trustee Act 1925 (ACT). The application sought advice concerning the stance the trustee should take in related proceedings, SC 153 of 2014, in which the trustee is defendant and Dealer Support Services Pty Ltd (DSS) is plaintiff, and concerning a number of legal issues.
On 25 July 2014 DSS was by consent given leave to intervene in these proceedings.
On 20 August 2014 I heard the trustee’s application and on 22 August I gave judgment, in the course of which I gave advice relevant to the related proceedings. DSS through its counsel played an active part in the hearing. When I gave judgment on 22 August 2014 I ordered that the trustee’s costs in this application should come from the assets of trust property on an indemnity basis. I gave leave to DSS to file and serve submissions in support of an application for an order that its costs too should come from trust property and on an indemnity basis.
Although submissions from the trustee were not received strictly in accordance with a time table I set, and DSS objected to my receiving them, I consider no prejudice would arise if I were to receive them and I have accordingly done so.
Power to award costs
Although the trustee contended I have no power to award costs, I am satisfied I do have that power. First, DSS was given leave to appear as an intervener. Secondly, rule 1721(1) of the Court Procedures Rules 2006 provides that the costs of a proceeding or of an application in a proceeding are in the discretion of the court, rule 3115(6) gives the Court power to make such orders as it considers just on an application under that rule, and this was an application under that rule. Thirdly, the discretion under s 63 is wide, and s 63(5), and (7) provide for notice of applications such as this to be given to affected persons. I am satisfied DSS is an affected person.
Although they were referred to by counsel for DSS in his submissions, Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653 and Re Perpetual Investment Management Ltd [2011] NSWSC 615, where powers under the Trustee Act1925 (NSW) were considered, are not helpful to the resolution of the issue, as the NSW Act has a section, s 93, which makes provision for the source from which costs are to be paid. Those cases relevantly considered s 93 of the NSW Act in that context, and not as to the jurisdiction of NSW courts to make costs orders generally.
Until 2001 the Trustee Act1925 (ACT) contained a provision (s 93) similar to s 93 of the NSW Act which gave the Court “full power to make such order as it thinks fit respecting the costs charges and expenses of all or any of the parties to any application under this Act”. But that section was repealed in 2001, and according to an explanatory note in Schedule 3 of the Statute Law Amendment Act (No 2) 2001 (ACT) the section was repealed as it was “unnecessary”. I was not referred by counsel to any other explanation for that repeal but it is consistent with the view I take of the Court’s powers under s 63.
Whether to award costs
The trustee submitted that if I find I do have power to make the order sought I should decline to make it.
An issue of significance in the related proceedings is whether DSS is the beneficial owner of units in a unit trust which is the subject of the related proceedings. A possible outcome of the related proceedings is that they will be dismissed because it is found DSS has no interest in the units because DSS and those purporting to transfer the units to it did not comply with relevant requirements of the trust deed. However that possibility should not necessarily militate against making the order now asked for.
I consider the application should succeed. The trustee made no objection to the joinder of DSS. Given the disputes involved in the related proceedings, I consider DSS was an appropriate party to appear and be heard on the s 63 application. Further, it played a useful part as contradictor and it is to be recalled in that respect that I declined to give advice for the significant matters to be determined in the related proceedings, although the trustee asked for those issues to be the subject of advice here. Finally, the intervention by DSS hardly added at all to the length of the hearing, almost all of which was taken up by the submissions of counsel for the trustee.
Orders
I accordingly order that the costs of DSS including this application for costs, be paid from the assets of the trust on an indemnity basis.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley. Associate: Date: 2 October 2014 |
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