Supreme Court of South Australia
(Civil: Application)
MOYES & ANOR v J & L DEVELOPMENTS PTY LTD & ANOR (No 3)
[2007] SASC 268
Judgment of The Honourable Justice Debelle (ex tempore)
13 July 2007
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS
Application by appellants and second respondent for order that costs be paid on indemnity basis – relevant principles – whether conduct of the first respondent could be described as conduct of party as a litigant – application dismissed.
Corporations Act 2001 (Cth) s 444D(1), s 444H; Supreme Court Act 1935 s 40(1), referred to.
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; Henderson v Amadio Pty Ltd (Federal Court of Australia, 22 March 1996, unreported); NMFM Property Pty Ltd v Citibank Ltd (No.2) (2001) 109 FCR 77; re Wilcox; ex parte Venture Industries Pty Ltd (No.2) (1996) 72 FCR 151, applied.
Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [2000] FCA 163; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; Hypec Electronics Pty Ltd (in liq) v Mead (2004) 61 NSWLR 169; J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (Western Australian Branch) (No 2) (1993) 46 IR 301; Moyes v J & L Developments Pty Ltd (No.2) [2007] SASC 261; re Suco Gold Pty Ltd (in liq) (1983) 33 SASR 99, considered.
MOYES & ANOR v J & L DEVELOPMENTS PTY LTD & ANOR (No 3)
[2007] SASC 268Land and Valuation Division
DEBELLE J. On 11 July 2007 I allowed an application for an order for costs against a non-party: Moyes v J & L Developments Pty Ltd (No.2) [2007] SASC 261 and I published my reasons. I ordered that the first respondent pay the costs of the appellants and the second respondent.
The appellants and the second respondent, the Adelaide Hills Council, applied for an order that costs be payable on an indemnity basis. At the request of the first respondent, I adjourned argument on the application until today.
Mr Heinrich, who now appears for J & L Developments Pty Ltd, seeks to raise fresh arguments in opposition to the orders proposed in the reasons delivered on 11 July. It is entirely inappropriate for these arguments to be raised at this late stage and after judgment has been delivered. I have no regard to them.
Mr Heinrich also seeks to rely on the fact that J & L Developments Pty Ltd has entered into a deed of arrangement with its creditors. He refers to the provisions of s 444D(1) and s 444H of the Corporations Act2001 (Cth). This submission must fail. Where creditors of a trust avail themselves of a right of subrogation after a corporate trustee has gone into liquidation, the trust creditors are entitled to recover the amount due to them out of the trust assets: re…
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- AGLC
- Moyes v J & L Developments Pty Ltd (No 3) [2007] SASC 268
- Case
- [2007] SASC 268
- Decision Date
CaseChat Overview and Summary
The court considered the principles relevant to the departure from the general rule of costs. It examined whether the first respondent's conduct was egregious enough to warrant such an order. The court noted that costs on an indemnity basis are not awarded lightly and are reserved for cases of exceptional conduct. The court found that while the first respondent's conduct might have been vexatious, it did not reach the level of exceptional misconduct required for an indemnity order. The court held that the first respondent's actions did not justify departing from the general rule for costs, and the application for costs on an indemnity basis was dismissed.
Consequently, the application by the appellants and second respondent for an order that costs be paid on an indemnity basis was dismissed. The court's reasoning was based on the assessment that the first respondent's conduct, though vexatious, did not meet the threshold for exceptional misconduct warranting an indemnity costs order. The court adhered to the principle that such orders are reserved for cases where the conduct of the party as a litigant is markedly egregious.
Orders
Orders of the court
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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
Established by: DEBELLE J
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