Nathan v Capital Finance Australia (No.2)
[2007] FMCA 1706
•18 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NATHAN v CAPITAL FINANCE AUSTRALIA (No.2) | [2007] FMCA 1706 |
| TRADE PRACTICES – Application for indemnity costs by successful respondent – consideration of relevant conduct by the applicant. |
| Thor (1989) 92 ALR 131-152 |
| Applicant: | KAILAI NATHAN |
| Respondent: | CAPITAL FINANCE AUSTRALIA |
| File number: | MLG 1427 of 2006 |
| Judgment of: | Burchardt FM |
| Hearing date: | 18 September 2007 |
| Date of last submission: | 18 September 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 18 September 2007 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms S. Ryan |
| Solicitors for the Respondent: | Bartier Perry |
ORDERS
The Application is dismissed.
The Applicant pay the Respondent’s costs, including any reserved costs, on an indemnity basis, to be taxed upon the Federal Court Rules, if not agreed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1427 of 2006
| KAILAI NATHAN |
Applicant
And
| CAPITAL FINANCE AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
On 10 September 2007 I handed down my reasons for judgment in this matter. At the last paragraph of that set of reasons I indicated that the application would have to be dismissed and that Mr Nathan would have to pay the Respondent's costs of the proceeding. That is the standard rule in proceedings such as this where costs can be awarded.
I adjourned the matter till today to enable the parties to make any submissions arising from that, and this morning Ms Ryan has sought on behalf of the Respondent that I award costs on an indemnity basis.
Two grounds have been put forward by Ms Ryan to support this application. The first she described as based on the facts of the case and the nature of the Applicant Mr Nathan's conduct during the trial, and the second is the original hire purchase agreement upon which the proceeding rested. Ms Ryan submitted that the central finding made by the Court was that the misrepresentation upon which Mr Nathan relied was never made. She relied upon the authority of Gummow J in the Federal Court, as his Honour then was, in the matter of Thor (1989) 92 ALR 131-152 in this regard.
She further pointed to the fact that Mr Nathan had persisted in allegations of fraud, forgery and the like, and referred to standard authority in support of the proposition that that was a relevant issue. She also referred to Mr Nathan's conduct in pressing one version of the original agreement before VCAT and seeking to present a diametrically opposed version before this Court. She further referred to my findings to the effect that the harassment allegations made by Mr Nathan were wholly without merit.
In respect of the second ground, Ms Ryan relied on the terms of the hire purchase agreement which I accept in clauses 6.1(d) and (e) are relevantly to the effect that Mr Nathan was bound to pay to the Respondent its indemnity costs pursuant to the agreement.
Mr Nathan's submissions have been short. First he has characterised the Court's decision as being based on racial discrimination, a remark which is prima facie in contempt of Court but with which I do not propose to deal further. He said that this proceeding seems to be producing a different result from another proceeding in bankruptcy in which no costs order was made. I am not in a position to comment as to why that may have been the case.
In my opinion, the proper disposition of the discretion that I undoubtedly have is to award costs on an indemnity basis. The primary reasons for which I reach that conclusion are the allegations, not at any stage resiled from, of fraud, document tampering, and in effect forgery that Mr Nathan put forward against the Respondent.
It is well established that such allegations are a proper basis to award indemnity costs, and in my opinion they should in this instance produce that result. Furthermore, Mr Nathan's conduct in pressing on this Court a completely different approach to the loan documentation he adopted before VCAT in this Court is conduct that merits disapprobation in the form of such an order for costs.
I am not particularly persuaded that the second basis has a great deal of force. I accept that there is authority for the proposition that the sort of contract to which Ms Ryan referred is a common enough one and one that stands as it were separate from the Court's powers, but one needs to bear in mind the relative imbalance in familiarity with such documentation between the Respondent on the one hand and Mr Nathan on the other as a person not legally qualified.
Nonetheless taking the conduct of Mr Nathan in this trial as a whole and laying perhaps particular emphasis upon the matters to which I have referred the proper order is that the costs should be paid in an indemnity basis. I will order therefore that the application is dismissed, and that the Applicant shall pay the Respondent's costs including any reserved costs on an indemnity basis to be taxed under the Federal Court Rules, if not agreed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 18 September 2007
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