Minahcroft P/L v Taylor, A.R

[1994] FCA 215

Attention: Judgments Clerk

Please find herewith copy and

disk copy of judgment in the
matter of Minahcroft Pty. Ltd. V.

Allan Richard Taylor QG210 of 1993.

BRISBANE 4000

With thanks,

JUDGES' CHAMBERS &

FEDERAL COURT OF AUSTRALIA
119 NORTH QUAY

21s

JUDGMENT NO. .aam..w . . amnmn-mee-

FEDERAL COURT OF AUSTRALIA
OUEENSLAND DISTRIm REGISTRY

GENERAL DIVISION	No. OG 210 of 1993
BETWEEN:
-	AND:
JUDGE MAKING ORDER:	Cooper J.
WHERE MADE..	Brisbane
DATE OF ORDER:	l1 Apr~l,  1994

MINUTES OF ORDER

THE COURT ORDERS:

1. That the applicant pay the respondents costs of and incidental to the application, including reserved costs, to be taxed if not agreed.

RECEIVED

2 7 APR 1994
FEDERAL COURT OF

AUSTRALIA

PnINCIPAL

REMSTRY

Note: Settlement and entry of orders is detllt wlth in Order 36 ot the Federal Court

Rules.

FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION	No. QG 210 of 1993
BETWEEN:

MINAHCROFT PTY. LTD.

ALLAN RICI-IARD TAYLOR

Resnondent

CORAM:	Cooper J.
PLACE:	Brisbane
E	:	-	11 April, 1994
REASONS FOR JUDGMENT

F~ling of the notice of discontinuance means that the appl~cant 1s

required to pay the costs of the applicat~on	incurred by the respondent, including, in
my view, any reserved costs.

The question arises as to whether or not the costs ought to be on a

party and party basis or on the bass of lndeninlty costs; that IS, solicitor and client

costs.

The respondent seeks indemmty costs on the basis that a perusal of the

proceedings indlcate that it was apparent that the respondent Mr. Taylor, as trustee,

was a person against whom no order could be made, there belng no relevant property in dispute in respect of whlch Mr. Taylor claimed an interest. Rather, the property which Mr. Taylor held by vlrtue of his trusteeship was the shares in the company. Whether or not Mr. Taylor recelved a dividend out of the proias of the company was

a matter which had nothing to do with the issues raised in the proceedings between these parties, namely, the nght of the applicant to recelve rents wh~ch are presently going to the company m which Mr. Taylor is a shareholder.

The relevant pr~nciples for the awarding of indemnity costs are set out

in the judgment of Woodward J. in Fountam Selected Meats (Sales) Ptv. Ltd. v. International Produce Merchants Ptv. Ltd. (1988) 81 ALR 397, and in the judgment of Rogers J. in Sinrzleton v. Macquarie Broadcasting I-Ioldinrzs (1991) 24 NSWLR 103.

In my view the mere bringing of proceedings which fail or are doomed to failure does

not of itself constitute the spec~al circumstances referred to by Woodward J. at page

401 of the report. When one reads what he says there in context, it 1s the Ignonng of

proper advice that the action had no chance of success which gives rise to a

presumption that the proceedings were commenced or continued for some ulterior

motive, or because of some wilful disregard of the known facts, or the clearly established law. As Woodward 3. says: "Szlclz cases lire forlrrrzately rare". Earlier in his

judgment (at 400) his Honour refers to his dec~sion m Australian Transnort Insurance	Ptv. Ltd. v. Graeme Phillips Road Transvort Insurance Ptv. Ltd. (1986) 71 ALR 287
at 288, where he makes clear that betore an order w~ll be made on an indemnity basis, there has to be some special or unusual feature to justlfy the court in exerclsmg its dlscretlon in that way, and cites, for example, cases of fraud being made and not
sustained.

In the instant case, the ques.lion of jurisdiction and the question of

joinder were raised by me on the occslsion that the matter was last before the court.

Additionally, an unwillingness on the part of those interested in the

applicant to provide security for costs and the inability of the applicant to do so itself has also had effect on the applicant's declsion not to proceed further with the matter.

The decision to termlnate the proceedings was taken expeditiously when the matter

was faced squarely today. In my vlew there 1s nothing in the circumstances so special

or unusual as to justify the making ot an indemnrty costs order.

THECOURTORDERS

1. That the applicant pay the respondents costs of and incidental to the

   application, including reserved costs, to be taxed if not agreed.

   I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of his

Honour Mr. Justice Cooper. t

Date: 22 April, 1994

Counsel for the Applicant:	Mr. F.W. Redmond
Solicitors for the Applicant:	James Walker
Counsel for the Respondent:	Mr. R. Derr~ngton
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	11 April, 1994
Place of Hearing:	Brisbane
Date of Judgment:	1 l April, 1994