Mango Boulevard Pty Ltd v Whitton

Case [2015] FCA 1352

FEDERAL COURT OF AUSTRALIA

Mango Boulevard Pty Ltd v Whitton [2015] FCA 1352

Citation: Mango Boulevard Pty Ltd v Whitton [2015] FCA 1352
Parties: MANGO BOULEVARD PTY LTD (ACN 101 544 601) and BMD HOLDINGS PTY LIMITED (ACN 101 093 349) v ROBERT WILLIAM WHITTON, RICHARD WILLIAM SPENCER and SILVANA PEROVICH
File number: VID 1183 of 2010
Judge: RANGIAH J
Date of judgment: 2 December 2015
Catchwords:

COSTS – applicant unsuccessful in principal proceeding – whether applicant should pay first respondent’s costs for his application to reopen case – where first respondent purported to take “neutral role” in proceeding – where application to reopen refused – first respondent to pay applicant’s costs of application to reopen

COSTS – application for indemnity costs – whether proceedings conducted for collateral purpose – whether institution and conduct of proceedings unreasonable – whether there was imprudent refusal of offer of compromise – where applicant entitled to pursue result provided for by law – where application for summary judgment dismissed – where offer of compromise uncertain – no basis for indemnity costs – party and party costs ordered
Legislation: Bankruptcy Act 1966 (Cth) ss 30 and 178
Federal Court Rules 2011 (Cth) rr40.01, 40.02, 40.03 and Schedule 1
Uniform Civil Procedure Rules 1999 (Qld)
Cases cited: Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 cited
Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 cited
LPD Holdings (Aust) Pty Ltd v Phillips Hickey and Toigo [2013] QCA 305 cited
Mango Boulevard Pty Ltd v Whitton (2011) 198 FCR 211 cited
Mango Boulevard Pty Ltd v Whitton [2014] FCA 324 cited
Mango Boulevard Pty Ltd v Whitton [2015] FCA 1169 cited
Walton v Gardiner (1993) 177 CLR 378 cited
Williams v Spautz (1992) 174 CLR 509 cited
Date of hearing: Heard on the papers
Date of last submissions: 17 November 2015 (Applicant)
19 November 2015 (First Respondent)
20 November 2015 (Second and Third Respondents)
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 25
Counsel for the Applicants: Mr DM Turner
Solicitor for the Applicants: Minter Ellison
Counsel for the First Respondent: Mr PP McQuade QC
Solicitor for the First Respondent: James Conomos Lawyers
Counsel for the Second and Third Respondents: Mr DD Keane
Solicitor for the Second and Third Respondents: Delta Law

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1183 of 2010
BETWEEN:

MANGO BOULEVARD PTY LTD (ACN 101 544 601)
First Applicant

BMD HOLDINGS PTY LIMITED (ACN 101 093 349)
Second Applicant
AND:

ROBERT WILLIAM WHITTON
First Respondent

RICHARD WILLIAM SPENCER
Second Respondent

SILVANA PEROVICH
Third Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

2 DECEMBER 2015

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The applicants pay the first respondent’s and the second and third respondents’ costs of the proceeding (including reserved costs and the costs of the first respondent’s application for directions filed on 16 March 2011), other than the costs described in Orders 2, 3, 4 and 5. 

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AGLC
Mango Boulevard Pty Ltd v Whitton [2015] FCA 1352
Case
[2015] FCA 1352
Decision Date

CaseChat Overview and Summary

In the case of Mango Boulevard Pty Ltd v Whitton, the applicants sought damages for breach of contract and breach of fiduciary duty. The applicants alleged that the first respondent, Mr Whitton, had breached his fiduciary duties and that the second and third respondents, companies, had conspired with him to cause economic loss to the applicants. The applicants sought an order for summary judgment and indemnity costs, claiming that the respondents had acted unreasonably and conducted the proceedings for a collateral purpose. The court had to determine whether the applicants should bear the costs of the proceeding, whether the first respondent should pay the applicants' costs of his application to reopen his case, and whether the applicants were entitled to indemnity costs.

The court considered the applicants' unsuccessful attempt to secure summary judgment and their application to reopen their case, which was dismissed. The court found that the first respondent had taken a neutral role in the proceeding and that the applicants had not established that the proceedings were conducted for a collateral purpose, that the institution and conduct of the proceeding was unreasonable, or that there was an imprudent refusal of an offer of compromise. The court held that the applicants were entitled to pursue the result provided for by law and dismissed the application for summary judgment, but did not find that the proceedings were unreasonable or that there was an imprudent refusal of an offer of compromise.

The court ordered that the applicants pay the first respondent's and the second and third respondents' costs of the proceeding, other than the costs described in specific orders. The first respondent was ordered to pay the applicants' costs of his application to reopen his case. The court found no basis for indemnity costs and ordered that the second and third respondents pay the applicants' costs of the interlocutory application. The orders did not affect previous costs orders made by other judges.

The court's decision was based on the applicants' unsuccessful attempts to secure summary judgment and reopen their case, and the lack of evidence of unreasonable conduct or a collateral purpose. The court held that the applicants were entitled to pursue their legal rights, but that the first respondent should bear the costs of his application to reopen his case. The orders reflected the court's assessment of the parties' conduct and the outcomes of previous proceedings.

Orders

Orders of the court

1. The applicants pay the first respondent’s and the second and third respondents’ costs of the proceeding (including reserved costs and the costs of the first respondent’s application for directions filed on 16 March 2011), other than the costs described in Orders 2, 3, 4 and 5.

2. The second and third respondents pay the applicants’ costs reserved by Greenwood J on 2 April 2014 of paras 1, 3 and 5 of the interlocutory application filed by the second and third respondents on 24 October 2013.

3. The first respondent pay the applicants’ costs of the first respondent’s application for reopening of his case.

4. There be no order as to the second and third respondents’ costs of the first applicant’s application for reopening of his case.

5. This order does not affect the costs orders made by Logan J on 29 April and 28 July 2011 and by Greenwood J on 17 March 2014.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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