Mulvaney Holdings Pty Ltd v Thorne - [2012] QSC 247

SUPREME COURT OF QUEENSLAND

CITATION:

Mulvaney Holdings Pty Ltd v Thorne & Ors [2012] QSC 247

PARTIES:

MULVANEY HOLDINGS PTY LTD

AS TRUSTEE FOR THE MULVANEY FAMILY TRUST

Plaintiff

V

BRETT JOHN THORNE

Defendant

And

GRAHAM DAVID LAIRD

Respondent

RICHARD JOHN WILLIAMSON

Respondent

RICK WILLIAMSON INVESTMENTS PTY LTD

Respondent

FILE NO/S:

S54/11

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

7 September 2012

DELIVERED AT:

Supreme Court Rockhampton

HEARING DATE:

27 August 2012

JUDGE:

McMeekin J

ORDER:

1.    The orders made on 30 April 2012 and (to the extent they may subsist) 29 March 2012 be discharged.

2.    The plaintiffs, within two days, pay Macrossan & Amiet the sum of $1,619.45 in respect of their invoice dated 4 May 2012.

3.    The plaintiffs pay the reasonable costs, on the indemnity basis, of Graham David Laird (personally and as trustee of the Laird Family Trust), Richard John Williamson and Rick Williamson Investments Pty Ltd of and incidental to the applications and orders made on 29 March 2012 and 30 April 2012 including their costs of and incidental to the hearing of 27 August 2012.

4.    The applications made on 29 March 2012, 30 April 2012 and 27 August 2012 otherwise be dismissed.

CATCHWORDS:

PROCEDURE – COSTS – whether persons who are affected by orders made in a proceeding but who are not parties to that proceeding should be protected as to the reasonable costs incurred as a result of the orders – where the applicant obtained ancillary orders affecting the interests of the respondents – where the respondents were not heard at the time the orders were made – where the applicant sought to maintain those orders and the respondents sought the orders be discharged – whether the applicant pay the costs incurred by the respondents on the indemnity basis

Corporate Affairs Commission v Austral Oil Estates Limited Unreported - BC8500624 - Supreme Court of New South Wales Equity Division - Eq 1407 of 1985 - 9 August 1985

Gold Ribbon Accountants Pty Ltd (in liq) v Sheers [2003] 1 Qd R 683

Heartwood Architectural Timber & Joinery Pty Ltd v Redchip Lawyers [2009] 2 Qd R 499

Mulvaney Holdings Pty Ltd as trustee for the Mulvaney Family Trust & Anor v Brett John Thorne & Ors [2012] QSC 127

Corporations Act 2001 s 601AD, 601AH(5)

Uniform Civil Procedure Rules 1999 rr 260B, 260D(4), 260D(5), 702, 703

COUNSEL:

PO Land for the plaintiff

KA Barlow SC for the respondents

SOLICITORS:

Kelly Legal for the plaintiff

Macrossan & Amiet for the respondents

McMeekin J: The issue I have to resolve is whether persons who are affected by orders made in a proceeding, but who are not parties to that proceeding, should be protected as to the reasonable costs incurred as a result of the orders.

The Background

On 29 March and 30 April of 2012 Mulvaney Holdings Pty Ltd (“the applicant”) applied for and obtained certain orders pursuant to r260B and rr260D(4) and (5) of the Uniform Civil…

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

Case: [2012] QSC 247
Decision Date: 7 September 2012

CaseChat Overview and Summary

Mulvaney Holdings Pty Ltd brought proceedings against Thorne and others, resulting in orders being made on 30 April 2012 and 29 March 2012 that affected the interests of the respondents, who were not parties to the proceeding. The respondents sought to have the orders discharged and argued that Mulvaney should bear the costs incurred by them due to the orders. The court was required to determine whether persons who are affected by orders made in a proceeding but who are not parties to that proceeding should be protected as to the reasonable costs incurred as a result of the orders, and if so, whether Mulvaney should pay the costs incurred by the respondents on an indemnity basis.

The court held that the orders made on 30 April 2012 and 29 March 2012 should be discharged as they were made without the respondents being heard. The court also found that Mulvaney should pay the costs incurred by the respondents on an indemnity basis because the respondents were affected by the orders and did not have an opportunity to be heard when they were made. The court considered that it was appropriate to protect the respondents from the costs incurred due to the orders made by Mulvaney.

The court ordered that the orders made on 30 April 2012 and 29 March 2012 be discharged. Mulvaney was required to pay Macrossan & Amiet the sum of $1,619.45 within two days and the reasonable costs, on the indemnity basis, of Graham David Laird (personally and as trustee of the Laird Family Trust), Richard John Williamson and Rick Williamson Investments Pty Ltd of and incidental to the applications and orders made on 29 March 2012 and 30 April 2012 including their costs of and incidental to the hearing of 27 August 2012. The applications made on 29 March 2012, 30 April 2012 and 27 August 2012 were otherwise dismissed.

Orders

Orders of the court

1. The orders made on 30 April 2012 and (to the extent they may subsist) 29 March 2012 be discharged.

2. The plaintiffs, within two days, pay Macrossan & Amiet the sum of $1,619.45 in respect of their invoice dated 4 May 2012.

3. The plaintiffs pay the reasonable costs, on the indemnity basis, of Graham David Laird (personally and as trustee of the Laird Family Trust), Richard John Williamson and Rick Williamson Investments Pty Ltd of and incidental to the applications and orders made on 29 March 2012 and 30 April 2012 including their costs of and incidental to the hearing of 27 August 2012.

4. The applications made on 29 March 2012, 30 April 2012 and 27 August 2012 otherwise be dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mulvaney Holdings Pty Ltd v Thorne & Ors [2012] QSC 247
PARTIES:	MULVANEY HOLDINGS PTY LTD AS TRUSTEE FOR THE MULVANEY FAMILY TRUST Plaintiff V BRETT JOHN THORNE Defendant And GRAHAM DAVID LAIRD Respondent RICHARD JOHN WILLIAMSON Respondent RICK WILLIAMSON INVESTMENTS PTY LTD Respondent
FILE NO/S:	S54/11
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	7 September 2012
DELIVERED AT:	Supreme Court Rockhampton
HEARING DATE:	27 August 2012
JUDGE:	McMeekin J
ORDER:	1. The orders made on 30 April 2012 and (to the extent they may subsist) 29 March 2012 be discharged. 2. The plaintiffs, within two days, pay Macrossan & Amiet the sum of $1,619.45 in respect of their invoice dated 4 May 2012. 3. The plaintiffs pay the reasonable costs, on the indemnity basis, of Graham David Laird (personally and as trustee of the Laird Family Trust), Richard John Williamson and Rick Williamson Investments Pty Ltd of and incidental to the applications and orders made on 29 March 2012 and 30 April 2012 including their costs of and incidental to the hearing of 27 August 2012. 4. The applications made on 29 March 2012, 30 April 2012 and 27 August 2012 otherwise be dismissed.
CATCHWORDS:	PROCEDURE – COSTS – whether persons who are affected by orders made in a proceeding but who are not parties to that proceeding should be protected as to the reasonable costs incurred as a result of the orders – where the applicant obtained ancillary orders affecting the interests of the respondents – where the respondents were not heard at the time the orders were made – where the applicant sought to maintain those orders and the respondents sought the orders be discharged – whether the applicant pay the costs incurred by the respondents on the indemnity basis Corporate Affairs Commission v Austral Oil Estates Limited Unreported - BC8500624 - Supreme Court of New South Wales Equity Division - Eq 1407 of 1985 - 9 August 1985 Gold Ribbon Accountants Pty Ltd (in liq) v Sheers [2003] 1 Qd R 683 Heartwood Architectural Timber & Joinery Pty Ltd v Redchip Lawyers [2009] 2 Qd R 499 Mulvaney Holdings Pty Ltd as trustee for the Mulvaney Family Trust & Anor v Brett John Thorne & Ors [2012] QSC 127 Corporations Act 2001 s 601AD, 601AH(5) Uniform Civil Procedure Rules 1999 rr 260B, 260D(4), 260D(5), 702, 703
COUNSEL:	PO Land for the plaintiff KA Barlow SC for the respondents
SOLICITORS:	Kelly Legal for the plaintiff Macrossan & Amiet for the respondents