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Moyes v J & L Developments Pty Ltd (No 3)

Moyes v J & L Developments Pty Ltd (No 3)

Case [2007] SASC 268 13 July 2007

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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 268
Land 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…

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.

Continue reading Moyes v J & L Developments Pty Ltd (No 3)

Details

AGLC: Moyes v J & L Developments Pty Ltd (No 3) [2007] SASC 268
Case: [2007] SASC 268
Decision Date: 13 July 2007

CaseChat Overview and Summary

In the case of Moyes v J & L Developments Pty Ltd (No 3), the dispute involved the appellants, Moyes, and the second respondent, seeking an order for costs on an indemnity basis against the first respondent, J & L Developments Pty Ltd. The case was heard in the Supreme Court of Queensland. The central issue before the court was whether the conduct of the first respondent, J & L Developments Pty Ltd, could be described as the conduct of a party as a litigant, warranting an order for costs on an indemnity basis. The appellants and second respondent argued that the first respondent's conduct was such that it should be held liable for costs on an indemnity basis, departing from the general rule.

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