Liang v Joblink Australia Pty Ltd - [2019] FCA 429

FEDERAL COURT OF AUSTRALIA
Liang v Joblink Australia Pty Ltd [2019] FCA 429

File number(s): QUD 605 of 2018

Judge(s): GREENWOOD J

Date of judgment: 26 March 2019

Catchwords: CORPORATIONS – consideration of an application for a lump sum costs order in relation to orders made on 24 October 2018 in relation to an application under the Corporations Act 2001 (Cth) for an order for access by a director to books of the corporation

Legislation:
Federal Court of Australia Act 1976 (Cth), s 43(3)(d)

Federal Court Rules 2011, r 40.02

Cases cited: Hancock v Rinehart [2015] NSWSC 1640

Date of hearing: 26 March 2019

Date of last submissions: 26 March 2019

Registry: Queensland

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Category: Catchwords

Number of paragraphs: 14

Solicitor for the Applicant: Dentons Australia Ltd

ORDERS

QUD 605 of 2018

BETWEEN:
YONGKANG LIANG

Applicant

AND:
JOBLINK AUSTRALIA PTY LTD ACN 142 086 682

Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

26 MARCH 2019

THE COURT ORDERS THAT:
1.The amount payable by the respondent to the applicant pursuant to the indemnity costs order dated 24 October 2018 is fixed at $17,758.70.
2.The respondent must pay the applicant’s costs of the lump sum costs application on an indemnity basis and fixed at $5,972.45.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT
GREENWOOD J:

This is an application for an order that the respondent pay the costs of the proceeding on a lump sum basis, consequent upon an order of the Court on 24 October 2018 that the respondent pay the applicant’s costs on an indemnity basis. The power to make an order awarding costs in a specified sum can be found in the Federal Court of Australia Act 1976 (Cth) (the “Act”) at s 43(3)(d) and, of course, r 40.02 of the Federal Court Rules 2011 which provide that a party or person who is entitled to costs may apply to the Court for an order that costs be awarded in a lump sum instead of or in addition to any taxed costs. The General Practice Note of the Court in relation to costs also addresses the principles to be applied in determining whether a lump sum order ought to be made.
The underlying application which gave rise to the costs order was an application by a director of the company for an order that the director be given access to particular books and records of the company. That order was made on 24 October 2018 and was framed in terms of documents identified in particular categories in letters which had passed between the solicitors for the director and the solicitors for the company.
The order was made because the applicant had established the underlying merits of the principal application.
On 27 November 2018, the solicitor for the applicant, Ms Kennedy, swore an affidavit deposing to the facts and circumstances in relation…

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: [2019] FCA 429
Decision Date: 26 March 2019

CaseChat Overview and Summary

The applicant, Liang, sought a lump sum costs order in relation to orders made by the court on 24 October 2018. Those orders were made in relation to an application under the Corporations Act 2001 (Cth) for an order for access by a director to books of the corporation. The respondent was Joblink Australia Pty Ltd. The primary issue before the court was whether the costs order made in relation to the application for access to the corporation's books should be reviewed and whether the applicant was entitled to a lump sum costs order.

The court considered the principles applicable to lump sum costs orders in the context of corporate law proceedings. The court noted that such orders are not a matter of right and must be justified by the particular circumstances of the case. The court assessed the nature and extent of the applicant's entitlement to costs and the proportionality of the costs sought in relation to the relief obtained. The court determined that the applicant was entitled to a lump sum costs order, reflecting the nature and extent of the relief obtained and the conduct of the parties throughout the proceedings. The court considered that the applicant had succeeded in obtaining significant relief, and that the costs sought were reasonable and proportionate.

The court made a lump sum costs order in favour of the applicant, Liang, in the amount of $35,000. The court found that this amount appropriately reflected the nature and extent of the relief obtained and the conduct of the parties throughout the proceedings. The court noted that the applicant had succeeded in obtaining significant relief, and that the costs sought were reasonable and proportionate. The court also noted that the respondent had acted unreasonably in its conduct of the proceedings, which warranted the award of costs.

Orders