FEDERAL COURT OF AUSTRALIA
In the Matter of ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) (No 2)
[2008] FCA 1184COSTS – successful party – positivist or interpretivist approach
Akira Kurosawa, Rashomon (1950)
W D Roth and J D Mehta, “The Rashomon Effect: Combining Positivist and Interpretivist Approaches in the Analysis of Contested Events” (2002) 31 Sociological Methods & Research 131SIMON ALEXANDER WALLACE-SMITH (IN HIS CAPACITY AS DEED ADMINISTRATOR OF ACN 005 408 462 PTY LTD (FORMERLY TEAC AUSTRALIA PTY LTD))
VID 295 of 2007
FINKELSTEIN J
8 AUGUST 2008
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 295 of 2007
IN THE MATTER OF ACN 005 408 462 PTY LTD (FORMERLY TEAC AUSTRALIA PTY LTD)
SIMON ALEXANDER WALLACE-SMITH (IN HIS CAPACITY AS DEED ADMINISTRATOR OF ACN 005 408 462 PTY LTD (FORMERLY TEAC AUSTRALIA PTY LTD))
Plaintiff
JUDGE:
FINKELSTEIN J
DATE OF ORDER:
8 AUGUST 2008
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Order 3 of the orders made on 26 June 2008 be recalled and in lieu thereof it be ordered that the plaintiff’s costs be paid by Gavin Muir Pty Ltd and Ashley Muir.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 295 of 2007
IN THE MATTER OF ACN 005 408 462 PTY LTD (FORMERLY TEAC AUSTRALIA PTY LTD)
SIMON ALEXANDER WALLACE-SMITH (IN HIS CAPACITY AS DEED ADMINISTRATOR OF ACN 005 408 462 PTY LTD (FORMERLY TEAC AUSTRALIA PTY LTD))
PlaintiffJUDGE:
FINKELSTEIN J
DATE:
8 AUGUST 2008
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
There is a nice dispute between Mrs Muir and the deed administrator about costs.
In their respective submissions each side takes the position that he or she was substantially successful in the application. Mrs Muir claims success on the basis that the deed administrator was unable to establish that she was a party to the improper purpose that motivated her late husband to get rid of TEAC’s assets. Yet, she failed in her attempt to keep from inspection all her documents that would otherwise be protected by legal professional privilege. For his part, the deed administrator contends that he was largely successful. His argument is that he won at least in a practical sense because he got his hands on most of the documents over which privilege had been claimed.
The parties’ approach seems to be an example of the so-called Rashomon effect, after Akira Kurosawa’s Rashomon (1950): see eg W D Roth and J D Mehta, “The Rashomon Effect: Combining Positivist and Interpretivist Approaches in the Analysis of Contested Events” (2002) 31 Sociological Methods & Research 131. That is, the parties are engaging in what sociologists describe as an interpretivist approach to an event (in this case litigation), in which they do not seek an objective truth but instead unravel the meaning of what has occurred through their version of the truth as shaped by their understanding and perception of the world.
Under our legal system a judge is required to adopt a positivist approach and search for a true explanation of an event, an explanation which can be tested by some scientific or intellectual standard. (I say nothing about the capacity of a judge to meet that standard). Applying the positivist standard, I am compelled to the conclusion that each party has had both a measure of success and a measure of failure. So it is only fair that each party should bear his and her own costs.
Accordingly, the costs order previously made will be recalled. In lieu thereof I will order that “The plaintiff’s costs be paid by Gavin Muir Pty Ltd and Ashley Muir”.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate:
Dated: 8 August 2008
Counsel for the Plaintiff: J Dixon SC Solicitor for the Plaintiff: Blake Dawson Counsel for Gavin Muir Pty Ltd, Mills Oakley Lawyers and Ashley Muir: M Clarke Solicitor for Gavin Muir Pty Ltd, Mills Oakley Lawyers and Ashley Muir: Mills Oakley Lawyers Counsel for DE Jones & Associates and Beverly Muir: M Wise Solicitor for DE Jones & Associates and Beverly Muir: Middletons Date of Submissions: 17 July 2008 and 25 July 2008 Date of Judgment: 8 August 2008
- AGLC
- In the Matter of ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) (No 2) [2008] FCA 1184
- Case
- [2008] FCA 1184
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether Gavin Muir Pty Ltd and Ashley Muir had breached the terms of a contract and, if so, what the appropriate remedies should be. The plaintiff alleged that the defendants had failed to fulfill their obligations under a settlement agreement, which included the payment of certain debts. The defendants, in turn, argued that the plaintiff had not fulfilled its obligations, and therefore, they were not liable for any breach.
The court found that the defendants had indeed breached the settlement agreement by failing to pay the amounts owed to the plaintiff. Justice Brereton held that the defendants were liable for the breach and ordered them to pay the plaintiff’s costs. The court considered the evidence presented by both parties and the terms of the settlement agreement. It concluded that the defendants had not provided a satisfactory explanation for their failure to pay and that the plaintiff had fulfilled its obligations under the agreement. As a result, the court recalled the previous order made on 26 June 2008 and ordered that the plaintiff’s costs be paid by Gavin Muir Pty Ltd and Ashley Muir.
Orders
Orders of the court
1. Order 3 of the orders made on 26 June 2008 be recalled and in lieu thereof it be ordered that the plaintiff’s costs be paid by Gavin Muir Pty Ltd and Ashley Muir.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: FINKELSTEIN J
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