MS Stock Contracting Pty Ltd v AUX Venture Pty Ltd (No 3)

[2011] NTSC 96

MS Stock Contracting Pty Ltd & Anor v AUX Venture Pty Ltd & Anor (No 3)

[2011] NTSC 96

PARTIES:MS STOCK CONTRACTING PTY LTD

(ACN 098 710 715)

And:

FLY FOX PTY LTD (ACN 132 028 276)

v

AUX VENTURE PTY LTD

(ACN 135 481 140)

And:

WAINWRIGHT, JENNIFER HELEN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:124 of 2010 (21037722)

DELIVERED:  28 November 2011

HEARING DATES:  27 September 2011

JUDGMENT OF:  BARR J

REPRESENTATION:

Counsel:

Plaintiff:D Robinson SC

Defendant:A Young

Solicitors:

Plaintiff:Clayton Utz

Defendant:South & Geldard

Judgment category classification:    C

Judgment ID Number:  Bar1112

Number of pages:  4

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

MS Stock Contracting & Anor v AUX Venture & Anor

[2011] NTSC 96

No 124 of 2010 (21037722)

BETWEEN:

MS STOCK CONTRACTING PTY LTD

(ACN 098 710 715)

First Plaintiff

AND:

FLY FOX PTY LTD (ACN 132 028 276)
Second Plaintiff

AND:

AUX VENTURE PTY LTD
  (ACN 135 481 140)
First Defendant

AND:

JENNIFER HELEN WAINWRIGHT

Second Defendant

CORAM:     BARR J

REASONS FOR JUDGMENT

(Delivered 28 November 2011)

1. By paragraph 3 of the orders made by me on 29 September 2011, I reserved the question of the costs of the further proceedings in relation to costs, including of the hearing on 27 September, with liberty to the parties to bring the matter on for further consideration.  I refer to MS Stock Contracting & Anor v AUX Venture & Anor (No 2) [2011] NTSC 76 at par [17].

2. I have now received and considered further communications and brief submissions from the parties.

3. Solicitors for the defendants have tendered a copy of the plaintiffs’ solicitors’ open letter dated 11 February 2011 in which they (the plaintiffs’ solicitors) enquired whether the defendants would consent to orders that the defendants pay the plaintiffs’ costs of and incidental to the proceeding, with such costs to be taxed and paid on an indemnity basis.  The defendants contend that my order that the defendants pay costs from 14 October 2011 was more favourable to the defendants than that which the plaintiffs had sought in their letter.

4. The defendants’ contention may be correct, depending on the construction of the words “costs of and incidental to the proceeding” in the plaintiffs’ offer.

5. My costs order was drafted to ensure that the costs payable by the defendants were in relation to the proceeding instituted by the plaintiffs’ application under SCR 32.03(1).  I chose the date 14 October 2011 as the date from which such costs were payable because that was the date on which the second defendant sowed the seeds of the third party fiction and thus precipitated the plaintiffs’ seeking a remedy under SCR 32.03(1).

6. Therefore (with the benefit of hindsight) my reasons for decision and my costs order reduced the scope of possible argument over the meaning of the expression “costs of and incidental to the proceeding”.

7. However, the fact that the plaintiffs may have initially sought something more than they ultimately obtained under my costs order is not determinant of their costs entitlement.

8. Relevantly, the plaintiffs had to continue to litigate to obtain a costs order.  The plaintiffs’ application for costs was opposed and arguments put by the defendants which, if accepted, might have disentitled the plaintiffs in full or at least substantially.  The plaintiffs were held to be entitled to significant costs on an indemnity basis.  The plaintiffs were therefore substantially successful in relation to costs.

9. There is no evidence that the defendants made any attempt to clarify or narrow down what the plaintiffs meant by “costs of and incidental to the proceeding”, if that was an issue for the defendants in February 2011 (or at any later time).  There is no evidence that the defendants attempted to negotiate the question of costs.  There is no evidence that the defendants made any offer to resolve costs, let alone made an offer which was as favourable or more favourable to the plaintiffs than the costs ordered.

10. In my judgment the plaintiffs are entitled to the costs of the further proceedings in relation to costs, including of the hearing on 27 September.  As to whether the plaintiffs’ entitlement to those reserved costs should be on the standard or indemnity basis, I am of the view that the same principles as to indemnity should apply as applied to the costs order made previously, as explained in MS Stock Contracting & Anor v AUX Venture & Anor (No 2), supra, par [15].

11. I make orders as follows:-

    1.The defendants pay the plaintiffs’ costs on the indemnity basis of the further proceedings in relation to costs, including the costs of the hearing on 27 September 2011.

    2.To the extent required, the hearing on 27 September 2011 be certified fit for senior counsel.

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