IRON MOUNTAIN MINING LTD -v- K & L GATES [2016] WASCA 166

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 166
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:152/2015	Heard:	8 AUGUST 2016
Coram:	MARTIN CJ MURPHY JA MITCHELL JA	Delivered:	27/09/16
No of pages:	16	Judgment Part:	1 of 1
Result:	Appeal stayed until appellant obtains leave to commence and continue the appeal from a court exercising bankruptcy jurisdiction
Category:	B
PDF Version

Parties:	IRON MOUNTAIN MINING LTD K & L GATES
Catchwords:	Legal costs Where company paid director's costs of defending criminal proceedings pursuant to indemnity prior to director's plea of guilty Where director declared bankrupt and company sought assessment of costs paid as a nonassociated third party payer Whether company entitled to seek costs assessment as a 'third party payer' Effect of costs assessment sought by nonassociated third party payer Whether costs assessment and subsequent appeal a 'legal proceeding in respect of a provable debt' which cannot be commenced without the leave of a court exercising bankruptcy jurisdiction
Legislation:	Bankruptcy Act 1966 (Cth), s 58(3) Corporations Act 2001 (Cth), s 199A, s 199C Legal Profession Act 2008 (WA), s 253(1)(a), s 295, s 305
Case References:	Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Coshott v Barry [2015] NSWCA 257; (2015) 91 NSWLR 1 Fraser v Commissioner of Taxation (1996) 69 FCR 99 Hudson v Sigalla [2015] FCAFC 140; (2015) 235 FCR 122 Iron Mountain Mining Ltd v K & L Gates [2015] WASC 291 Iron Mountain Mining Ltd v K & L Gates [No 2] [2015] WASC 373 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 Melnik v Melnik [2005] FCAFC 160; (2005) 144 FCR 141 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Note Printing Australia Ltd v Leckenby [2015] VSCA 105; (2015) 106 ACSR 147 Re McMaster; Ex parte McMaster (1991) 33 FCR 70

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IRON MOUNTAIN MINING LTD -v- K & L GATES [2016] WASCA 166 CORAM : MARTIN CJ

MURPHY JA

MITCHELL JA

HEARD : 8 AUGUST 2016 DELIVERED : 27 SEPTEMBER 2016 FILE NO/S : CACV 152 of 2015 BETWEEN : IRON MOUNTAIN MINING LTD

Appellant

AND

K & L GATES

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : IRON MOUNTAIN MINING LTD -v- K & L GATES [No 2] [2015] WASC 373

File No : LPA 34 of 2014

Catchwords:

Legal costs - Where company paid director's costs of defending criminal proceedings pursuant to indemnity prior to director's plea of guilty - Where director declared bankrupt and company sought assessment of costs paid as a nonassociated third party payer - Whether company entitled to seek costs assessment as a 'third party payer' - Effect of costs assessment sought…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASCA 166
Decision Date: 27 SEPTEMBER 2016

CaseChat Overview and Summary

The case involved Iron Mountain Mining Ltd, who sought to recover legal costs paid on behalf of their director, who was subsequently declared bankrupt. The director had been defending criminal charges, and the company had agreed to indemnify the director for those costs prior to the director pleading guilty. The company sought to recover the costs it had paid as a third party payer. The legal issues in the case were whether the company was entitled to seek costs assessment as a non-associated third party payer and whether the costs assessment and subsequent appeal constituted a 'legal proceeding in respect of a provable debt' which required leave from a court exercising bankruptcy jurisdiction. The court held that the company was not entitled to seek the costs assessment as a non-associated third party payer, and the subsequent appeal did require leave from a court exercising bankruptcy jurisdiction. Consequently, the appeal was stayed until the appellant obtained leave to commence and continue the appeal from a court exercising bankruptcy jurisdiction. The court's decision was based on the interpretation of the relevant legislation, which provided that only associated third party payers could seek costs assessment, and the Bankruptcy Act, which required leave from a court exercising bankruptcy jurisdiction to commence proceedings in respect of a provable debt.

Orders

Orders of the court

Appeal stayed until appellant obtains leave to commence and continue the appeal from a court exercising bankruptcy jurisdiction

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

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