JGM Nominees Pty Ltd v Australvic Pty Ltd (in liq) (No 3)

[2011] VSC 520

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST

S CI 2009 05417

JGM NOMINEES PTY LTD (ACN 006 210 402)	Firstnamed plaintiff
- and -
SEVENTH ASTEROID PTY LTD (ACN 006 077 256)	Secondnamed plaintiff
- and -
ROCCO ANTONIO CALDERONE	Thirdnamed plaintiff
v
TULIP INVESTMENTS PTY LTD (ACN 112 507 221)	Firstnamed defendant
- and -
AUSTRALVIC PROPERTY MANAGEMENT PTY LTD (ACN 113 858 021) (in liquidation)	Secondnamed defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2011
DATE OF JUDGMENT:	19 October 2011
CASE MAY BE CITED AS:	JGM Nominees Pty Ltd v Australvic Pty Ltd (in liq) (No 3)
MEDIUM NEUTRAL CITATION:	[2011] VSC 520

COSTS – decision of associate judge – appeal by company in liquidation and its liquidator – two issues in appeal – appeal allowed on one issue and not the other - significant overlap in these issues – company and liquidator were both necessary parties – whether costs of both should follow the event of the appeal being allowed.

APPEARANCES:	Counsel	Solicitors
For the plaintiffs	Mr I Upjohn	John Matthies and Co
For the firstnamed defendant	No appearance
For the secondnamed defendant and its liquidator, Michael McCann	Mr G McCormick	Goldsmiths

HIS HONOUR:

1. By an originating motion dated 13 March 2009, the plaintiffs (‘the Calderone interests‘) made application for access to funds in court in the sum of $123,640.09.  That claim was resisted by the second defendant (‘Australvic’) and its liquidator, Michael McCann (‘the liquidator’).  The first defendant did not participate in the proceeding.  On 4 December 2009, Associate Justice Daly ruled in favour of the Calderone interests.

1. On 15 December 2009, Australvic applied by summons for orders that the liquidator’s costs and expenses be paid out of the funds in court.  Associate Justice Daly ruled against that summons and made cost orders in favour of the Calderone interests against the liquidator personally.  She delivered judgment on the question of costs on 31 March 2009.

1. The orders giving effect to her Honour’s orders on both the substantive application and the question of costs were made on 14 April 2010.  In summary, she made orders giving the Calderone interests access to the funds in court and requiring the liquidator to pay personally most of their costs.

1. By a notice of appeal dated 8 April 2010, Australvic and its liquidator appealed against the judgment and orders of Associate Justice Daly dated 31 March 2010.  At that date, the final orders dated 14 April 2010 had not been made.  By a judgment delivered on 23 December 2010, I dismissed the appeal in relation to the substantive issue and upheld the appeal in relation to the issue of costs.[1]  I said I would hear the parties in relation to the form of the orders and costs and have since received written and oral submissions in relation to those issues.

   [1]JGM Nominees Pty Ltd v Australvic Pty Ltd (in liq) (No 3) [2010] VSC 623.

1. In the judgment, I determined that Australvic and the liquidator should have leave to appeal out of time the order of her Honour dated 14 April 2010, as well as leave nunc pro tunc to make that application for leave.  There will be orders accordingly.  About those issues the parties were agreed.  There was also agreement about the form of the order I should make in relation to Australvic’s costs of the security for costs application which was brought by summons dated 18 September 2008 and the plaintiff’s entitlement to a certificate under the Appeals Costs Act 1998.

1. The parties were not agreed in relation to the costs orders which should be made in the appeal.  The critical question is whether Australvic and the liquidator were successful in the appeal.  On behalf of the Calderone interests, it was submitted that Australvic had wholly failed and that the liquidator had succeeded only on the issue of costs.  Australvic and the liquidator submitted that it was artificial to draw a distinction between them and that they were both successful in the appeal.

1. In my view no distinction should be drawn between Australvic and the liquidator.  In the way that the appeal was run and determined, there was significant overlap between the issue of the entitlement of the Calderone interests to access the funds in court and the issue of the entitlement of the liquidator to access those funds for his remuneration.  It was only after a full consideration of the first issue that I was able to give proper consideration to the second issue.  If there had been no appeal with respect to the first issue, and an appeal only with respect to the second issue, it would still have been necessary for me to go into the entitlement of the Calderone interests to access the funds in court in some depth.  Therefore the length of the appeal was not made much greater by the inclusion of the first issue.

1. Further, Australvic and the liquidator were both necessary parties in the appeal.  Because of the overlap between the first and second issues, it was not convenient and probably not possible to distinguish between their participation in the appeal in relation to these issues.  Australvic was the moving party in the appeal on both issues.  Having regard to the overlap, that was both appropriate and necessary.  The liquidator was not separately represented and Australvic’s counsel carried the burden of representing the interests of the liquidator in the appeal.  In my view, the appropriate characterisation of the result of the appeal is that Australvic and the liquidator were successful because their challenge to the orders of Associate Justice Daly, except the order upholding the entitlement of the Calderone interests to access the funds in court, was upheld.  The costs orders in the appeal should follow that event.

1. There will be costs orders accordingly.

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