Jingalong Pty Ltd v Todd (No 3)

[2014] NSWCA 353

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Jingalong Pty Ltd v Todd (No 3) [2014] NSWCA 353

Hearing dates:

13 October 2014

Decision date:

13 October 2014

Before:

Macfarlan JA

Decision:

Orders made in terms of the document initialled by Macfarlan JA and placed with the papers.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - application for freezing order pending resolution of appeal - no issue of principle

Category:

Interlocutory applications

Parties:

Gregory George Todd (Applicant)
Jingalong Pty Ltd (First Respondent)
Brett Pernice (Second Respondent)

Representation:

Counsel:
D Brezniak (Applicant)
C S Ward/S Kanagaratnam (First Respondent)
D Nagle (Second Respondent)
Solicitors:
Johnston Tobin (Applicant)
A L Wunderlich & Co (First Respondent)
Hancock Alldis & Roskov (Second Respondent)

File Number(s):

CA 2014/137752

 Decision under appeal 

Jurisdiction:

9111

Citation:

Todd v Jingalong Pty Ltd [2014] NSWSC 362

Date of Decision:

2014-03-31 00:00:00

Before:

Kunc J

File Number(s):

SC 2012/344643

Judgment

1. HIS HONOUR: This is an application by a respondent to an appeal, Mr Gregory Todd, against the appellant, Jingalong Pty Ltd, designed to have assets of the appellant preserved to enable it to meet a costs order made by Kunc J at first instance. The costs have not yet been the subject of a formal assessment.

1. The circumstances in which this application is made are identified in the judgment of Gleeson JA in Jingalong Pty Ltd v Todd (No 2) [2014] NSWCA 347 (see also that of McColl JA at [2014] NSWCA 330 and those of Kunc J at [2014] NSWSC 362 and [2014] NSWSC 440). A freezing order was made by Gleeson JA on 9 October 2014 on the ex parte application of Mr Todd. The order was operative only until today, at which time an inter-parties hearing has taken place.

1. The appellant complained that full disclosure appears not to have been made by Mr Todd to Gleeson JA. However I am not able to deal with that very serious complaint as a transcript of what occurred before his Honour is not yet available. In any event, it is unnecessary to do so on this application as the application heard today is, and has been treated as, a fresh application for a freezing order.

1. The evidence before me today indicates clearly that the appellant is in a difficult financial position and that the net proceeds (approximating $360,000) of the impending settlement of the sale to which Gleeson JA referred in his judgment are likely to be applied in discharge of existing debts, leaving few if any funds available to pay costs to which Mr Todd may be entitled (subject to the present appeal) in respect of the proceedings at first instance.

1. In my view it is appropriate that there be a further freezing order generally in the terms of that made by Gleeson JA, although the amount to be specified in the order requires consideration.

1. The evidence led on Mr Todd's behalf as to the amount to which he may become entitled on assessment of his costs incurred at first instance is unsatisfactory. It comprises only evidence in an affidavit of his present solicitor that various attached accounts were provided by his previous solicitors. Those accounts are said to total $129,408.46 but no attempt has been made by the present solicitor to make a considered estimate of the amount that would be recoverable as party/party costs. The accounts appear to be on a solicitor/client basis and there appears to have been double counting in the addition of the accounts. For example, amounts included in some accounts in respect of accounts previously rendered have been treated as new and additional amounts owing under the later accounts. Moreover, no attempt has been made to exclude costs not, or arguably not, recoverable under the relevant costs order, for example, costs relating to the lodgement of a caveat and costs relating to a mediation between the parties.

1. When some of these matters were drawn to the attention of Mr Todd's counsel on the hearing before me, he sought and obtained an opportunity to review the accounts. That led to a revision of the amount claimed to $94,745.15.

1. Of relevance also to the estimation of costs which Mr Todd may be able to recover from the appellant is correspondence which passed between the parties in August 2014. In that correspondence, Mr Todd sought retention by the appellant from the proceeds of sale of the parcel of land presently in question of an amount to cover his recoverable costs in respect of the proceedings at first instance and his costs of the appeal. He agreed that an amount of $85,000 would be retained for this purpose but subsequently resiled from that agreement.

1. Although it is not suggested that Mr Todd was not entitled to resile from the agreement, his assent to the amount of $85,000 is in my view of significance in considering the present question, particularly as his solicitor gave evidence on the present application that Mr Todd's estimated costs on the appeal alone were between $30,050 and $39,500.

1. In these circumstances, I do not consider that Mr Todd has demonstrated that his recoverable costs in respect of the proceedings at first instance will exceed $50,000. Accordingly, I consider that an order to the effect of that made by Gleeson JA should be continued but substituting the amount of $50,000 for the amount of $130,000.

1. Although there was some discussion at the hearing before me as to whether Mr Todd's present application should be regarded as relating not only to his costs at first instance but also to his costs of the appeal, the appellant was not in a position to deal with the security for costs application unless, which is not the case, I accepted its submission that I should adopt the figure of $85,000 as covering both the costs at first instance and on appeal. As a result, Mr Todd's application for security for costs which is made by his Notice of Motion filed on 9 October 2014 should be regarded as outstanding. This judgment therefore deals only with order (4) as sought in that Notice of Motion.

1. I do not consider that I should make any special order for costs. Whilst Mr Todd has obtained an order, the amount to which it relates is far less than he sought. The costs of the application before me will therefore form part of the costs of the appeal.

1. I should mention in conclusion that Mr Todd sought an order in relation to the second respondent to the appeal, Mr Brett Pernice. I was told that an arrangement had been reached with him and it was unnecessary, at least at this stage, to make any formal order in respect of that application.

[COUNSEL ADDRESSED]

1. I make orders in terms of the document that I have initialled and placed with the papers.

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