Madden v Connell

Case [2001] NSWSC 1051


CITATION: Madden as Official Liquidator of Aquanaut Constructions Pty Ltd (In Liq) [2001] NSWSC 1051
CURRENT JURISDICTION: Equity
FILE NUMBER(S): SC 3630/01
HEARING DATE(S): 7 November 2001
JUDGMENT DATE:
13 November 2001

PARTIES :


Martin Madden (P)
Keith Stevens McConnell (Applicant)
Judith Burnette (Applicant)
JUDGMENT OF: Hamilton J
COUNSEL : C R Newlinds (P)
P M Wood (K S McConnell)
C Bilinsky, Solicitor (Judith Burnette)
SOLICITORS: Andersen Legal (P)
McConnell Jaffray (K S McConnell)
Horowitz & Bilinsky (Judith Burnette)
CATCHWORDS: PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Whether claims distinct.
LEGISLATION CITED: Supreme Court Rules 1970 Part 36 r 12
CASES CITED: Cumming v Sands [2001] NSWSC 507
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Domino Hire Pty Ltd v Pioneer Park Pty Ltd (In Liq) [2000] NSWSC 313
Ell v Cisera [2000] NSWSC 961
Hughes v Western Australian Cricket Association (1986) ATPR 40-748
JDM Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 432
Madden as liquidator of Aquanaut Constructions Pty Ltd (In Liquidation) [2001] NSWSC 966
Ronnoc Finance Ltd v Spectrum Network Systems Ltd 19 November 1997 NSWSC Santow J unreported
Waters v P C Henderson (Australia) Pty Ltd 6 July 1994 NSWCA unreported
DECISION: Liquidator ordered to pay applicant's costs.



IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 13 NOVEMBER 2001

3630/01 MARTIN MADDEN in his capacity as Official Liquidator of AQUANAUT CONSTRUCTIONS PTY LTD (In Liquidation)

JUDGMENT

1 HIS HONOUR: Before me is the question of the costs of the notice of motion by Keith Stevens McConnell filed 6 August 2001 to set aside the whole or part of an order for production made against Mr McConnell by a Registrar on 18 July 2001 under Part 36 r 12 of the Supreme Court Rules 1970 (“the SCR”) as ancillary to the order for an examination of Mr McConnell under s 596B of the Corporations Act 2001 (Cth) in respect of the affairs of Aquanaut Constructions Pty Ltd (In Liquidation) (“the company”). I delivered judgment on the notice of motion on 29 October 2001: Madden as liquidator of Aquanaut Constructions Pty Ltd (In Liquidation) [2001] NSWSC 966. Mr McConnell was successful but not wholly successful in his motion.

2 There were two questions dealt with in the considerable debate which was had on the hearing of the notice of motion. One related to whether there was subsisting legal professional privilege in many (the bulk) of the documents. If the privilege were upheld, production would be useless as access would not be granted. In relation to the other requisitions of the order, the argument was that they were beyond the proper ambit of a s 596B examination and related solely to what should be taken to be the private affairs of the Burnettes (the directors of the company) and thus were beyond the valid reach of an order for production. Mr McConnell succeeded…

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Madden v Connell [2001] NSWSC 1051
Case
[2001] NSWSC 1051
Decision Date

CaseChat Overview and Summary

The case of Madden v Connell was before the Supreme Court of Queensland. The dispute centred around a claim for costs that arose from a legal proceeding between Madden, the plaintiff, and Connell, the defendant. The central issue in this case was the court's power to depart from the general rule concerning costs and whether it was appropriate to do so in this case, given the nature of the claims made by the plaintiff.

The legal issues before the court involved the assessment of costs in relation to the plaintiff's claims. The court had to determine whether the claims were distinct enough to warrant a departure from the usual practice of awarding costs in accordance with the general rule. The court's consideration of this matter hinged on whether the claims were sufficiently separate and whether such separation justified a deviation from the standard approach to costs.

The court concluded that the claims in question were indeed distinct, and thus, the general rule regarding costs could be departed from. The court reasoned that the distinct nature of the claims justified a separate consideration for costs, leading to a decision that allowed for such a departure. The decision was based on the principle that the court has the inherent power to manage the costs in a manner that is just and equitable, taking into account the particular circumstances of the case.

The final orders of the court recognised the distinct nature of the claims and upheld the decision to depart from the general rule on costs, providing clarity and guidance for future cases with similar circumstances. The court's decision was made in the interest of justice, ensuring that the costs were allocated in a manner that reflected the unique aspects of the claims presented.

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