Lindsay v McManus

[2003] WASC 162 (S)

LINDSAY AND OTHERS -v- McMANUS [2003] WASC 162 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 162 (S)
Published:	28/11/2003
Case No:	CIV:1502/2003	Heard:	8 AUGUST 2003
Coram:	MASTER SANDERSON	Delivered:	8/08/03
Supplementary Delivered:	6/04/04
No of pages:	3	Judgment Part:	1 of 1
Result:	Costs awarded to plaintiff
Category:	B
PDF Version

Parties:	BRIAN DESMOND LINDSAY AND OTHERS LEO McMANUS
Catchwords:	Practice and procedure Costs Turns on own facts
Legislation:	Nil
Case References:	Lindsay & Ors v McManus [2003] WASC 162 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LINDSAY AND OTHERS -v- McMANUS [2003] WASC 162 (S) CORAM : MASTER SANDERSON HEARD : 8 AUGUST 2003 DELIVERED : 8 AUGUST 2003 PUBLISHED : 28 NOVEMBER 2003 SUPPLEMENTARY
DECISION : 6 APRIL 2004 FILE NO/S : CIV 1502 of 2003 BETWEEN : BRIAN DESMOND LINDSAY AND OTHERS

Plaintiffs

AND

LEO McMANUS
Defendant

Catchwords:

Practice and procedure - Costs - Turns on own facts

Legislation:

Nil

Result:

Costs awarded to plaintiff

(Page 2)

Category: B

Representation:

Counsel:

Plaintiffs : Mr D H Solomon & Mr J C Giles
Defendant : Mr P B O'Neal

Solicitors:

Plaintiffs : Solomon Brothers
Defendant : Raj Malhotra

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

Lindsay & Ors v McManus [2003] WASC 162

Case(s) also cited:

Nil


(Page 3)

1 MASTER SANDERSON: On 28 November 2003 I published reasons in this matter: Lindsay & Ors v McManus [2003] WASC 162. The result of the orders that I made were that the defendant was required to deliver up certain documents in his possession to the plaintiffs' solicitors. The remaining question is who should bear the costs of the application.

2 On behalf of the defendant it was submitted that the defendant only came into possession of the documents in carrying out his duties as a supervisor. The defendant had no interest in any of the documents but could find no-one who was interested in taking custody of them. He was therefore in a position of holding the documents against his will. However, he did not believe, on legal advice, that he could deliver the documents to the plaintiffs without an order of the Court.

3 On the part of the plaintiffs, it was argued that apart from anything else, they were successful in the proceedings and costs should follow the event. More to the point, it was said that the documents were clearly the property of the plaintiffs, or that they had better title to them than any other party. This, it was said, was so obvious as to make the defendant's refusal to deliver up the documents inappropriate, if not wrongful. In those circumstances, the plaintiffs said they should have the costs of the proceedings.

4 On balance, I am satisfied that the costs of the proceedings should be paid by the defendant. I am satisfied that the defendant should have delivered up the plaintiffs' property when demand was made, thus forcing the plaintiffs to make this application.

5 Accordingly the order will be that the defendant pay the plaintiffs' costs of the application, including reserved costs.