Ireland v Norilya Minerals Pty Ltd

[2010] WASCA 203 (S)

IRELAND -v- NORILYA MINERALS PTY LTD [2010] WASCA 203 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASCA 203 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:104/2010	Heard:	12 OCTOBER 2010
Coram:	McLURE P NEWNES JA MURPHY JA	Delivered:	20/10/10
Supplementary Delivered:	4/11/10
No of pages:	4	Judgment Part:	1 of 1
Result:	Appellants ordered to pay respondent's costs Appellants' application for stay of costs orders dismissed
Category:	B
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Parties:	ADAM JONATHON IRELAND as Executor of the Estate of DEAN EDWARD IRELAND CLARK ERVIN EASTERDAY LEONARD LANCELOT IRELAND KAYLENE HOLDINGS PTY LTD BRENDA ANNE EASTERDAY WEBGO PTY LTD FIM PTY LTD PAUL CHRISTOPHER IRELAND NORILYA MINERALS PTY LTD
Catchwords:	Practice and procedure Order for costs Application for stay of costs order
Legislation:	Civil Judgments Enforcement Act 2004 (WA), s 15
Case References:	Pringle v Gloag (1879) 10 Ch D 676

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IRELAND -v- NORILYA MINERALS PTY LTD [2010] WASCA 203 (S) CORAM : McLURE P

NEWNES JA
MURPHY JA

HEARD : 12 OCTOBER 2010 DELIVERED : 20 OCTOBER 2010 SUPPLEMENTARY
DECISION : 4 NOVEMBER 2010 FILE NO/S : CACV 104 of 2010 BETWEEN : ADAM JONATHON IRELAND as Executor of the Estate of DEAN EDWARD IRELAND

CLARK ERVIN EASTERDAY
LEONARD LANCELOT IRELAND
First Appellants

KAYLENE HOLDINGS PTY LTD
Second Appellant

BRENDA ANNE EASTERDAY
Third Appellant

WEBGO PTY LTD
Fourth Appellant

FIM PTY LTD
Fifth Appellant

PAUL CHRISTOPHER IRELAND
Sixth Appellant

(Page 2)

AND

NORILYA MINERALS PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : LE MIERE J

Citation : NORILYA MINERALS PTY LTD -v- ADAM JONATHON IRELAND as Named Executor of the Estate of DEAN EDWARD IRELAND [2010] WASC 260

File No : CIV 2232 of 1990, CIV 2364 of 2007

Catchwords:

Practice and procedure - Order for costs - Application for stay of costs order

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15

Result:

Appellants ordered to pay respondent's costs

Appellants' application for stay of costs orders dismissed

Category: B

(Page 3)

Representation:

Counsel:

First Appellants : Mr J A Thomson
Second Appellant : Mr J A Thomson
Third Appellant : Mr J A Thomson
Fourth Appellant : Mr J A Thomson
Fifth Appellant : Mr J A Thomson
Sixth Appellant : Mr J A Thomson
Respondent : Mr S M Davies SC & Ms K F Banks­Smith

Solicitors:

First Appellants : Bostock & Ryan
Second Appellant : Bostock & Ryan
Third Appellant : Bostock & Ryan
Fourth Appellant : Bostock & Ryan
Fifth Appellant : Bostock & Ryan
Sixth Appellant : Bostock & Ryan
Respondent : Norton Rose Australia

Case(s) referred to in judgment(s):

Pringle v Gloag (1879) 10 Ch D 676


(Page 4)

1 JUDGMENT OF THE COURT: After the dismissal of the appellants' application for leave to appeal on 12 October 2010, the respondent applied for a costs order in its favour. The appellants did not oppose the making of a costs order, but sought an order that payment of the costs be stayed pursuant to s 15 of the Civil Judgments Enforcement Act 2004 (WA) (the Act), until the determination of the civil claims in CIV 2232 of 1990 and CIV 2364 of 2007. Section 15(3) of the Act provides that the court may only make such an order if there are 'special circumstances' that justify the making of the order. In support of their application for a stay, the appellants in effect said that if there were no stay, they would be denied the opportunity of setting off the amount due by them under the costs order, against the amounts due to them under the Court of Criminal Appeal's orders, the liability for which the respondent could not avoid if the respondent fails at trial. They say that this result works a particular injustice, in circumstances where the respondent will have no assets in any event to satisfy the Court of Criminal Appeal's orders if its claim to an equitable set-off is rejected, with which orders the respondent continues not to comply in the meantime.

2 But for the respondent's claim to an equitable set-off, the amounts due under the two orders could be set off: O 66 r 7 Rules of the Supreme Court 1971 (WA); Pringle v Gloag (1879) 10 Ch D 676, 679 (inherent jurisdiction). The respondent's right to an equitable set-off against the Court of Criminal Appeal's orders has not yet been determined. The very unusual circumstances pertaining in this litigation might well, all other things being equal, constitute 'special circumstances' which would justify the grant of a stay of the costs order. However, the features of the appellants' application to which we referred in [27] of the court's principal reasons herein, to which these reasons are supplementary, put a different complexion on matters. In our view the appellants' conduct in exposing themselves to the costs order they now face is relevant to a consideration of whether 'special circumstances' exist. Having regard to the appellant's conduct in this application, we are not persuaded that 'special circumstances' exist which would justify a stay of the costs order.

3 For these reasons, we would order that the appellants pay the respondent's costs of the application for leave to appeal to be taxed or agreed, and we would refuse the appellants' application for a stay of that order.