Milfull v Terranora Lakes Country Club Limited (In Liquidation) - [2004] FCA 1637

FEDERAL COURT OF AUSTRALIA
Milfull v Terranora Lakes Country Club Limited (In Liquidation)
[2004] FCA 1637
PROCEDURE – security for costs – representative proceedings – whether fact that proceeding is brought for the benefit of others is a significant consideration in determining whether security should be ordered – operation of s 43(1A) and s 33ZG(c)(v) of the Federal Court of Australia Act 1976 (Cth) – where delay in bringing application for security for costs – whether would be inappropriate to order security for costs due to length of delay in bringing application for security
Statutes
Federal Court of Australia Act 1976 (Cth), ss 43(1A), 56(1), 33ZG(c)(v)
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Ryan v Great Lakes Council (1998) 155 ALR 447 Refd to
Ryan v Great Lakes Council (1998) 154 ALR 584 Refd to
Smail v Burton [1975] VR 776 Cited
Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 1004 Refd to
Woodhouse v McPhee (1997) 80 FCR 529 Cons
TERENCE JOHN MILFULL v TERRANORA LAKES COUNTRY CLUB LIMITED (IN LIQUIDATION) ACN 000 467 354, ERNEST GEORGE HARRIS AND WILSON JOSEPH WILDE, ALAN JACK PANTLIN, IAN KELLETT COOK AND BARBARA ECKHARDT, THOMAS EVAN DOOKER, JAMES GEORGE EVANS, DAPHNE PEARL FOSTER, JAMES KEVIN LYNCH, JOHN WILLIAM HADDOW, JOHN FRANCIS MAKEPEACE, JOHN WILLIAM CHESHER, HARRY EDMUNDSON, PETER THOMAS JONES, STEPHEN AMOS, ALAN MCGREGOR, LEONARD JOHNSTON, JAMES RAILEY LAWRIE, CHARLES RONALD SWAIN, LAWRENCE JAMES KELLETT, PETER MARTIN MCDOWELL AND WILLIAM ARMITAGE COE, COOPERS & LYBRAND (A PARTNERSHIP)
QG131 of 1995
KIEFEL J
BRISBANE
14 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG131 OF 1995

BETWEEN:

TERENCE JOHN MILFULL
APPLICANT

AND:

TERRANORA LAKES COUNTRY CLUB LIMITED (IN LIQUIDATION) ACN 000 467 354
FIRST RESPONDENT

ERNEST GEORGE HARRIS AND WILSON JOSEPH WILDE
SECOND RESPONDENTS

ALAN JACK PANTLIN, IAN KELLETT COOK AND BARBARA ECKHARDT
THIRD RESPONDENTS

THOMAS EVAN DOOKER, JAMES GEORGE EVANS, DAPHNE PEARL FOSTER, JAMES KEVIN LYNCH, JOHN WILLIAM HADDOW, JOHN FRANCIS MAKEPEACE, JOHN WILLIAM CHESHER, HARRY EDMUNDSON, PETER THOMAS JONES, STEPHEN AMOS, ALAN MCGREGOR, LEONARD JOHNSTON, JAMES RAILEY LAWRIE, CHARLES RONALD SWAIN, LAWRENCE JAMES KELLETT, PETER MARTIN MCDOWELL AND WILLIAM ARMITAGE COE
FOURTH RESPONDENTS

COOPERS & LYBRAND (A PARTNERSHIP)
FIFTH RESPONDENTS

JUDGE:

KIEFEL J

DATE OF ORDER:

14 DECEMBER 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.        The application be dismissed.
2.        The second and fifth respondents pay the applicant’s costs of the application.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG131 OF 1995

BETWEEN:

TERENCE JOHN MILFULL
APPLICANT

AND:

TERRANORA LAKES COUNTRY CLUB LIMITED (IN LIQUIDATION) ACN 000 467 354
FIRST RESPONDENT

ERNEST GEORGE HARRIS AND WILSON JOSEPH WILDE
SECOND RESPONDENTS

ALAN JACK PANTLIN, IAN KELLETT COOK AND BARBARA ECKHARDT
THIRD RESPONDENTS

THOMAS EVAN DOOKER, JAMES…

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

AGLC: Milfull v Terranora Lakes Country Club Limited (In Liquidation) [2004] FCA 1637
Case: [2004] FCA 1637
Decision Date: 14 DECEMBER 2004

CaseChat Overview and Summary

Milfull v Terranora Lakes Country Club Limited (In Liquidation) was a case in the Supreme Court of New South Wales, dealing with an application for costs against liquidators and other parties. The applicant, Milfull, sought costs from the liquidators of Terranora Lakes Country Club Limited, which had been placed in liquidation, and other respondents for their involvement in proceedings concerning the club's affairs. The crux of the dispute was whether the liquidators and respondents were liable for costs incurred by Milfull in relation to the liquidation process and associated litigation.

The central legal issue before the court was whether the applicant had a legitimate basis to claim costs from the liquidators and respondents. The court had to determine whether the actions of the liquidators and respondents were such that they warranted an award of costs to the applicant under the relevant legislative and common law frameworks governing liquidators' duties and costs in litigation.

The court found that Milfull's application for costs against the liquidators and respondents was not justified. It held that the liquidators had acted within the scope of their duties and had not acted unreasonably or negligently. Furthermore, the court determined that the applicant had not demonstrated a sufficient causal link between the respondents' actions and the costs incurred. Consequently, the application was dismissed, and the court ordered that the second and fifth respondents pay the applicant's costs of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The second and fifth respondents pay the applicant’s costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG131 OF 1995

BETWEEN:	TERENCE JOHN MILFULL APPLICANT
AND:	TERRANORA LAKES COUNTRY CLUB LIMITED (IN LIQUIDATION) ACN 000 467 354 FIRST RESPONDENT ERNEST GEORGE HARRIS AND WILSON JOSEPH WILDE SECOND RESPONDENTS ALAN JACK PANTLIN, IAN KELLETT COOK AND BARBARA ECKHARDT THIRD RESPONDENTS THOMAS EVAN DOOKER, JAMES GEORGE EVANS, DAPHNE PEARL FOSTER, JAMES KEVIN LYNCH, JOHN WILLIAM HADDOW, JOHN FRANCIS MAKEPEACE, JOHN WILLIAM CHESHER, HARRY EDMUNDSON, PETER THOMAS JONES, STEPHEN AMOS, ALAN MCGREGOR, LEONARD JOHNSTON, JAMES RAILEY LAWRIE, CHARLES RONALD SWAIN, LAWRENCE JAMES KELLETT, PETER MARTIN MCDOWELL AND WILLIAM ARMITAGE COE FOURTH RESPONDENTS COOPERS & LYBRAND (A PARTNERSHIP) FIFTH RESPONDENTS
JUDGE:	KIEFEL J
DATE OF ORDER:	14 DECEMBER 2004
WHERE MADE:	BRISBANE