Mercland Investment Group Pty Ltd v Duncalm Pty Ltd
[2010] FCA 1027
FEDERAL COURT OF AUSTRALIA
Mercland Investment Group Pty Ltd v Duncalm Pty Ltd [2010] FCA 1027
Citation: Mercland Investment Group Pty Ltd v Duncalm Pty Ltd [2010] FCA 1027 Parties: MERCLAND INVESTMENT GROUP PTY LIMITED ACN 119 224 556 v DUNCALM PTY LIMITED ACN 086 114 552, STEPHEN MATTHEW JONES, FRAZER ROBERTS and ROBERT LEIGH RAMPTON File number: NSD 1949 of 2008 Judge: EDMONDS J Date of judgment: 21 September 2010 Date of hearing: 4 August 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 8 Counsel for the Applicant: Mr D McLure Solicitor for the Applicant: McLachlan Thorpe Partners Counsel for the Respondents: Mr S Golledge Solicitor for the Respondents: Hunt & Hunt
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1949 of 2008
BETWEEN: MERCLAND INVESTMENT GROUP PTY LIMITED
ACN 119 224 556
ApplicantAND: DUNCALM PTY LIMITED
ACN 086 114 552
First RespondentSTEPHEN MATTHEW JONES
Second RespondentFRAZER ROBERTS
Third RespondentROBERT LEIGH RAMPTON
Fourth Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
21 SEPTEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The motion be dismissed.
2.The respondents pay the applicant’s costs of the motion, as taxed or agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1949 of 2008
BETWEEN: MERCLAND INVESTMENT GROUP PTY LIMITED
ACN 119 224 556
ApplicantAND: DUNCALM PTY LIMITED
ACN 086 114 552
First RespondentSTEPHEN MATTHEW JONES
Second RespondentFRAZER ROBERTS
Third RespondentROBERT LEIGH RAMPTON
Fourth Respondent
JUDGE:
EDMONDS J
DATE:
21 SEPTEMBER 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 4 August 2010 I heard a motion on notice that the applicant provide security for the respondents’ costs in the sum of $80,000 or such other amount as the Court deems appropriate. Ancillary relief was also sought.
In support of the motion the respondents relied on an affidavit of its solicitor, sworn and filed 3 February 2010. It also relied on an earlier affidavit of its solicitor sworn 3 August 2009 and filed on 11 August 2009 in support of an earlier motion seeking security for the respondents’ costs in the sum of $180,000 or such other amount as the Court deemed appropriate which was disposed of by consent orders made on 20 August 2009.
I have come to the conclusion that the present motion should be dismissed for the following reasons.
The applicant has already provided security for the respondents’ costs in the sum of $120,000 in connection with the disposal of the earlier motion pursuant to the consent orders made on 20 August 2009.
The affidavit filed in support of the earlier motion made it clear that the solicitor’s assessment of the respondents’ costs was for the entirety of the proceedings up to: ‘Taking and reviewing judgment’: [17(I)]. Paragraphs [22] to [24] of the same affidavit confirmed this. It was against that background that the parties resolved the dispute. So understood, the present motion is an application to reconsider the adequacy of the security that was provided by agreement when the first motion was before the Court. In the exercise of my discretion, that is a course I decline to take. It might be otherwise if the earlier motion for security had been sought on a managed piecemeal basis in anticipation that a further application or applications would be made as the course of litigation progressed. But that quite clearly was not the basis upon which the earlier motion was brought.
The respondents submitted that substantial additional costs have been incurred in relation to the amendment of the statement of claim. The amended statement of claim was filed on 26 November 2009, that is, after the making of the consent orders first disposed of the earlier motion. The amendments to the statement of claim were not substantial in terms of the quantitative changes that had to be made to the original statement of claim although leave to amend was opposed by the respondents. I granted leave but ordered the applicant to pay the respondents’ costs thrown away by the amendment. No sum is advanced in the evidence for the respondents as to what costs are said to constitute costs thrown away by the amendments. As the applicant submitted, I am left to guess that it is somewhere between the $18,000 that is identified in the respondents’ solicitor’s affidavit of 3 February 2010 and the $80,000 that is sought on the motion. I agree with the applicant’s further submission that there is no evidence whatsoever to sustain the respondents’ submission that those costs justify an amount of that kind.
The applicant made further submissions as to why the respondents’ motion should be dismissed which are said to fall under the umbrella contention that the respondents’ conduct has caused the applicant’s financial difficulty. There will be cases where this is patently obvious and for that reason will warrant consideration in the exercise of the discretion. This is not one of them even if it subsequently transpires that the contention is made good. I have not taken that contention into account in reaching the conclusion I have.
Nevertheless, for the foregoing reasons, the motion should be dismissed with costs.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 20 September 2010
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