In the matter of Wysvisa P/L; Kam, P.T.Y v Fisher, D.

[1992] FCA 668

JUDGMENT No. .k?&...,/ 4'L

IN THE FEDERAL COURT OF AUSTRALIA )	No. QG 3103 of 1992
QUEENSLAND DISTRICT REGISTRY	)
GENERAL DIVISION	1

IN THE MATTER OF THE

CORPORATIONS LAW

AND

IN THE MATTER OF WYSVISA PTY.

LTD. ("the Company") ACN 010 947

145

PETER TAK YUEN KAM

First Applicant

PETER JOSEPH McINALLY

Second Applicant

ROWAN ANDREW ASTILL

Third Applicant

SILVERVILLA PTY. LTD. ACN

010 928 336

Fourth Applicant

DAVID FISHER

First Respondent

TREVOR DAVID CHAPPELL

0-

Second Respondent

.--

.-- I

HAVENCAY PTY. LIMITED ACN

003 928 336

19 August, 1992.

-7 .

Third Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:	Drummond J
DATE OF ORDER:	24 August, 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1. The second, third and fourth applicants have leave, nunc pro tunc, to file a notice of discontinuance on

   The second, third and fourth applicants pay the first respondent's costs of the proceedings, including today, to be taxed on a party and party basis, except for costs incurred between the morning of 17 August, 1992 and the time when the notice of discontinuance was filed, which costs are to be taxed on a solicitor and client basis.

   The second, third and fourth applicants pay the second and third respondents' costs of the proceedings, including today, to be taxed on a party and party basis.

m:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )	No. QG 3013 of 1992
DUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

IN THE MATTER OF THE

CORPORATIONS LAW

AND

IN THE MATTER OF WYSVISA PTY.

LTD. ("the Company") ACN 010 947

PETER TAX YUEN KAM

First Applicant

PETER JOSEPH McINALLY

Second Applicant

ROWAN ANDREW ASTILL

Third Applicant

SILVERVILLA PTY. LTD. ACN

010 928 336

Fourth Applicant

DAVID FISHER

First Respondent

TREVOR DAVID CHAPPELL

Second Respondent

HAVENCAY PTY. LIMITED ACN

003 928 336

Third Respondent

corm:	Drummond J
Date:	24 August, 1992
Place :	Brisbane

EX TEMPORE REASONS FOR JUDGMENT

On 19 August last, the remaining applicants in the

action, the second, third and fourth applicants, filed a
notice of discontinuance in reliance upon order 22 rule
2(l)(b) of the Federal Court Rules. Given the directions that
I had earlier given, it is clear that it was not open to those
applicants to rely upon that particular rule since the
proceeding did not "continue on pleadings". It is therefore
necessary for those applicants to obtain leave to discontinue

pursuant to Order 22 rule 2(l)(d).	I propose to grant that
leave.

The real debate, however, is whether those

applicants should pay the costs of the first respondent on a
more generous basis than the usual party and party basis. The
applicants concede that they must pay the costs of the
proceedings of all the respondents on a party and party basis.
The second and third respondents make no claim to any

additional entitlement in relation to costs.

The matter came before me on 5 August last on an

application by all applicants, including the first applicant,

Mr. Kam, for interlocutory relief. It became unnecessary to

embark upon what would have been a fairly extensive hearing

because the court was able to arrange for a very much

accelerated trial. On 7 August, 1992 the matter was set down

for hearing for five days in the week commencing Monday, 24

August, 1992.

On 11 August, the matter was brought back before me

because of the conduct of Mr. Kam, which resulted in my making
orders that day requiring all applicants, including Mr. Kam,
to file a statement of factual and legal contentions by 17
August in default of which the application of any defaulting
applicant would stand dismissed at 10.15 a.m. on that day; I
further ordered that any applicant against whom the
proceedings so stood dismissed would be required to pay the
costs of the other respondents of and incidental to that
applicant's proceedings, such costs to be taxed on a solicitor
and client basis. On Monday, 17 August, 1992 the proceedings
were, in effect, dismissed pursuant to those orders, so far as
Mr. Kam was concerned.

On that morning, and prior to 10.15 a.m., the action not having settled, and indeed, my having been told beforehand on 11 August, 1992 that there was no certainty that the matter would settle even if Mr. Kam were to be dismissed from the

proceedings, the second, third, and fourth applicants filed

and served their statement of factual and legal contentions.

Objection is taken by the first respondent to this

statement of factual and legal contentions as raising a claim
which had not been raised against the first respondent
hitherto. It may be doubted whether that is strictly accurate
having regard to the relief claimed in the application and the
issues that were agitated in the affidavit material filed in
support of the application for interlocutory relief. What is,
however, clear is that counsel for the applicants on 5 August,
orally indicated that there would be no claim - and I do not
think I am putting the matter too high in saying that -
challenging the validity of the removal of the second and
third applicants from the board of directors of Wysvisa Pty.
Ltd.. Yet when the statement of factual and legal contentions
was delivered on behalf of those applicants on 17 August, just
such a claim was made against, among others, the first
respondent.

The material before me indicates that very prompt

protest was made on behalf of the first respondent at this
change in direction by the applicants and it elicited a
response in the form of the notice of discontinuance filed on

19 August.

I am not prepared, on the material before me, to

find that this was a case in which the applicants, if they had

considered the matter on proper advice, should never have

embarked upon litigation against the first respondent.	I am
accordingly not prepared to accede to the application that

this is a proper case for a taxation on any basis more
generous than a party and party basis to be directed in favour
of the first respondent in relation to the whole of the
proceedings, subject to one qualification.

The qualification arises out of the change of direction, as I have described it, which emerged in the statement of factual and legal contentions delivered by the

second, third, and fourth applicants on the morning of 17
August, resurrecting a claim against the first respondent
which may have originally been foreshadowed in the

application, but which had been abandoned by counsel for the

applicants in the course of argument on 5 August. I take into

account the fact that a prompt response was made to the
protest that was advanced on behalf of the first respondent,
which, by taking the form of a notice of discontinuance,
clearly conveyed that no claim was being pursued against that
particular respondent. I also take into account the fact that
no application was brought by the first respondent to prevent
that particular claim being run against the first respondent;
but it was appropriate for the first respondent to make
protest to the applicants before coming to court,
notwithstanding the fact that this action was being run within

an extremely abbreviated timetable.

I think that, taking into account the compressed

run-up to the commencement of the hearing of the proceedings
and the disavowal by the applicants on 5 August of any claim
against Mr. Fisher in respect of the validity of the removal
of the second and third applicants from the board of directors
of Wysvisa Pty. Ltd., it is appropriate to allow the first
respondent his costs, on a solicitor and client basis, of the
proceedings in the period between 17 August and the time when
the notice of discontinuance was filed and that otherwise, the
first respondent is to have his costs of the proceedings
against the second, third and fourth applicants on a party and

party basis only.

I certify that this and the
preceding five pages is a
true copy of the reasons
for judgment herein of the

Honourable Mr. Justice Drummond.

Associate: WHY Date: 24 August, 1992