National Mutual Life Association of Australasia Limited v Chris Poulson Insurance Agencies Pty Ltd (No 6)
[1998] TASSC 113
•21 September 1998
113/1998
PARTIES:NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED
v
CHRIS POULSON INSURANCE AGENCIES PTY LTD (No 6)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M1648/1991
DELIVERED: 21 September 1998
HEARING DATE/S: 31 July 1998
JUDGMENT OF: Slicer J
CATCHWORDS:
Procedure - Costs - General Rule - Costs follow the event - Costs of a whole action - Where money paid into court or offer of compromise made - Offer of compromise made - Offer made by plaintiff in response to defendant's counterclaim.
Electrona Carbide Industries Pty Ltd and Attorney-General for the Sate of Tasmania v Baillieu Bowring (Tas) Pty Ltd, B9/1987; EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59; Société Anonyme Pêcheries Ostendaises v Merchants' Marine Insurance Company [1928] 1 KB 750, followed.
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425, considered.
Calderbank v Calderbank [1976] Fam 93, referred to
Supreme Court Civil Procedure Act 1932 (Tas), s12.
Rules of the Supreme Court 1965 (Tas), O24A.
Procedure - Costs - Jurisdiction - Persons not parties to proceedings - Discretion of court - Source of power.
Knight and Another v F P Special Assets Limited and Others (1992) 174 CLR 178, applied.
Bischof v Adams [1992] 2 VR 198, followed.
Supreme Court Civil Procedure Act 1932 (Tas), s12.
Rules of the Supreme Court 1965 (Tas), O80.
REPRESENTATION:
Counsel:
Plaintiff: D A Bessell and A C R Spence
Defendant : G L Sealy and C G Rainbird
Solicitors:
Plaintiff: Page Seager
Defendant: Piggott Wood & Baker
Judgment category classification:
Court Computer Code:
Judgment ID Number: 113/1998
Number of pages: 11
Serial No 113/1998
File No M1648/1991
NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED v CHRIS POULSON INSURANCE AGENCIES PTY LTD (No 6)
REASONS FOR JUDGMENT SLICER J
21 SEPTEMBER 1998
Following the entry of judgment in favour of the plaintiff (NML) and the dismissal of the counterclaim of the defendant (CPIA), 31/1998, NML seeks orders for costs on an indemnity basis and further that portion of such costs be paid by a person not a party to the action. The action brought by the plaintiff was for moneys paid under mistake of fact and commissions advanced and entitlement was not challenged on the trial which instead was concerned with the defendant's counterclaim for damages based on claimed breaches of contract and fiduciary duty. The defendant does not oppose an order for costs in favour of the plaintiff in the ordinary manner and such an order will be made.
On 27 July 1998, solicitors for NML advised the Registrar of this Court that it would seek orders for costs in the following terms:
"1That the defendant pay the plaintiff's costs on the counterclaim on a party / party basis up until the 31st of July 1997.
2That Christopher James Poulson pay the plaintiff's costs on the counterclaim on a party / party basis up until the 31st of July 1997.
3That from the 31st of July 1997 the defendant pay the plaintiff's costs on the counterclaim on an indemnity basis.
4That from the 31st of July 1997 Christopher James Poulson pay the plaintiff's costs on the counterclaim on an indemnity basis.
5The indemnity costs referred to in orders 3 and 4 hereof are to include all costs except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that subject to these exceptions, the plaintiff will be completely indemnified by the defendant and Christopher James Poulson for its costs."
Notice had previously been given by NML on 8 April 1998 (the date of judgment) that a costs order would be sought against Poulson personally. Corresponding notice was given to the solicitors for CPIA. No proof of separate notice to Poulson was provided to the Court and, on the hearing of the application, senior counsel for CPIA announced the appearances for the defendant. He took no objection, based on lack of notice as to the proceedings, and the hearing proceeded on the basis that Poulson, as the director of CPIA, was represented in his own right in relation to the issue of costs. If that view be incorrect, it might be necessary to permit further hearing of the matter.
In support of its application, NML put into evidence an affidavit sworn by one of its solicitors which comprises the following salient material:
That Poulson is and always has been the sole director of CPIA, which in turn remains the trustee of the Chris Poulson Insurance Trust. The beneficiaries of the trust are Poulson and members of his family. The principal activity of CPIA, a company with a paid up share capital of $2, is to be the trustee for the Chris Poulson Insurance Trust.
That CPIA was, at the relevant times, an agent of NML and had operated as a commercial vehicle for Poulson in his occupation as an insurance agent. There were taxation benefits achieved by this form of operation through the incorporation of CPIA.
That since the end of the agreement with NML, CPIA has held virtually no net assets or accumulated profits, or, at least, that the relevant information has not been disclosed in the returns for the years 1996 - 1997. Further, that a search of property records discloses that CPIA owns no real property within Tasmania or Queensland (where Poulson currently resides).
That the available returns for the Chris Poulson Insurance Trust disclose that all or most of its profits have been distributed to various beneficiaries.
Poulson has incurred liabilities of $435,000 in legal costs, and $49,000 to NML (in respect of the judgment which is subject to appeal).
On 17 July 1997, a "Calderbank" offer was made by NML to CPIA.
In addition, the parties agreed the following fact:
NML has either had possession of or access to the financial statements of CPIA for the years ending June 1990 - 1994, since September 1996.
The application raises three issues requiring resolution before regard can be had to the above factual material, namely, the effect of attempted compromise, the nature of indemnity costs and the question of non-party liability. The issues of compromise and indemnity costs apply equally to the respondent and to Poulson.
Jurisdiction
Jurisdiction of this Court as to costs is afforded by the Supreme Court Civil Procedure Act 1932 ("the Act"), s12(2), which provides:
"(2) Subject as provided in subsection (1) the costs of all proceedings whatsoever in the Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power and authority to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid."
The Rules of the Supreme Court, O80, r1, affords wide discretion in that, "… the costs of and incidental to all proceedings in the Court … shall be in the discretion of the Court or judge." The power afforded by statute extending to persons who are not parties to the action was considered by the High Court in Knight and Another v F P Special Assets Limited and Others (1992) 174 CLR 178. In that case, the court was considering the extent of power afforded by comparable legislation and Rules of Court made pursuant to such legislation. The power is subject to constraint (see Re JJT; Ex Parte Victoria Legal Aid (1998) 11 Leg Rep 23) and in the words of Mason CJ and Deane J in Knight (supra) at 192:
"The conclusion that the wide words of O 91, r 1 should not be read down so as to preclude jurisdiction to make an order for costs against a non-party does not, of course, mean that a judge has an unfettered discretion to make any order that he or she chooses. The wide jurisdiction conferred by the rule 'must be exercised judicially and in accordance with general legal principles pertaining to the law of costs', to take up the words of Lambert JA in Oasis Hotel Ltd v Zurich Insurance Co."
Note 77 to Oasis Hotel Ltd v Zurich Insurance Co reads:
"77 (1981) 124 DLR (3d) 455, at p 462. In that case, an order for costs as between solicitor and client was made against a director and principal shareholder of the insolvent plaintiff company, notwithstanding that he was a non-party, on the ground that he had instigated an action which sought to make the court an instrument of fraud."
The power to make costs orders against non-parties who are directors of litigating companies in non-fraud cases has been recognised (see Talk Finance and Insurance Services Pty Ltd [1994] 1 Qd R 558; Burns Philp & Co v Bhagat [1993] 1 VR 203). The exercise of that power by this Court is afforded by the operation of the Act, s12.
Indemnity costs
The power to award costs on an indemnity basis is said to arise from the operation of the Act, s12(2), previously referred to. The section is similar to the Supreme Court of Judicature (Consolidation) Act 1925 (UK), s50(1), which was reproduced, without amendment, in the Supreme Court Act 1981 (UK), s51. That latter section was held by McGarry VC in EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59 to afford power to award costs on an indemnity basis. There is no reason to reach a contrary conclusion in relation to the Tasmanian position. It was argued that the power to award solicitor/client costs is precluded by the operation of the Act, s12(3), which provides:
"The Court or any judge thereof may award costs as between solicitor and client in any case in which such costs may be awarded by the Court or a judge thereof at the commencement of this Act."
The argument is dependent on the proposition stated in Quick on Costs at 4.1940:
"Section 12(3) … might be thought to prevent the award of indemnity costs in common law proceedings. The section confines the jurisdiction to that existing at 2 August 1933, the date of commencement of the Act. At that time the jurisdiction towards solicitor and client costs between parties had only been established in equitable proceedings."
Before the passing of the Supreme Court of Judicature Act 1873 (UK), it was held that the Court of Chancery had power to award costs as between solicitor and client, but that such power did not extend to courts of common law (Mordue v Palmer [1870] 6 Ch App 22). Following the 1873 enactment, whilst it was not possible to claim solicitor/client costs as part of the damages in the action (Cockburn v Edwards [1881] 18 Ch D 449), the Court of Appeal determined that since the passing of the 1873 Act, the High Court of Justice had, as the old Court of Chancery formerly had in matters of equitable jurisdiction, a general discretionary power to give costs as between solicitor and client (Andrews v Barnes [1888] 39 Ch D 133) because the Supreme Court of Judicature Act 1875, which was to be construed as one with the original legislation, provided in Sch 1, O55:
"Subject to the provisions of the Act, the costs of and incident to all proceedings in the High Court shall be in the discretion of the court …"
That provision corresponded with the Supreme Court of Judicature (Consolidation) Act 1925, s50.
The 1875 amendment was further considered by Kay LJ Inre Fisher [1894] 1 Ch D 450, who said at 453:
"That means if there be a provision in the Judicature Acts or in the Rules of Court, or an express provision in any statute which limits the discretion of the Court, the Act is to be taken subject to that limitation; but it also means that the Court is to have a discretion where the former Acts are silent as to costs."
Some rule amendments were made in 1902, following which costs were awarded on a solicitor/client basis in a common law action in Giles v Randall [1915] 1 KB 290 and the power to award such costs, based on the 1925 enactment, was not doubted by Wilma LJ in The Maystone and the Albion, Thomason v Swan, Hunter and Wigham Richardson, Ltd [1954] 2 All ER 859, although he concluded that the discretion was inhibited or precluded by the Rules of Court. No such constraint was seen by McGarry VC in EMI Records (supra). No such constraint is to be found in the Rules of Court (Tas), and, as of 1925, courts in Tasmania had power to award costs in both common law and equity cases.
If such be a mistaken view of the scope of the power as of 1924, then two further answers suggest themselves. Although the Act refers to a practice or a jurisdiction existing at the time of the legislation, and only affords a stated common law power existent at the time of the legislation, the statute does not oust the inherent jurisdiction of the Court (Rouse v Shepherd [No 2] (1994) 35 NSWLR 277).
The second answer is that a portion of the counterclaim related to a claimed breach of fiduciary duty, the definition of which would permit the exercise of the equitable jurisdiction of the Court. However, it is unnecessary to consider this argument since the exercise of power could be justified by reference to the inherent jurisdiction of the Court. The power to award indemnity costs has been recognised by this Court on a number of occasions (O'Rourke v Perpetual Trustees A45/1987, Underwood J; Re Application of White B48/1989, Cox J; Plimsoll v Drake (No 3) B21/1996, Zeeman J). It would appear that there is a distinction between costs awarded on an indemnity basis and those made on a solicitor/client basis, although in some cases that distinction is blurred (Bartlett & Ors v Barclays Bank Trust Co Ltd [1980] Ch 515 at 547). Nettlefold J, in Electrona Carbide Industries Pty Ltd and Attorney-General for the Sate of Tasmania v Baillieu Bowring (Tas) Pty Ltd, B9/1987, was less inclined to make a distinction between party/party costs and those described as solicitor/client costs. Having reviewed a number of English and Australian decisions concerning the special circumstances in which indemnity costs might be awarded, he gave consideration to the Rules of Court (Tas), observing at 4:
"In Tasmania there is a good deal to be said for the view that on any taxation of costs between the parties to hostile common law litigation allowance for a given item of work should be the same whether the taxation is as between party and party or between party and party as between solicitor and client. (See O80 rs 68 and 69 and Appendix M to the rules; In re Marsland and Marsland [1902] QSR 219, a judgment by Sir Samuel Griffith and others; article by Mr A S Saddington (1952 - 53) 27 ALJ 369)."
In the opinion of Nettlefold J, the Tasmanian Rules O80, rr68 and 69, reflected the English Rules O65, r27(29), about which Atkin LJ in Société Anonyme Pêcheries Ostendaises v Merchants' Marine Insurance Company [1928] 1 KB 750 at 762 stated:
"Upon that question it appears to me to be very important to bear in mind that the Taxing Masters have got to apply the words of Order LXV, r 27, sub-r 29. That rule is the guiding rule in the taxation of costs. It is intended to sum up generally the principles upon which costs are awarded; and I cannot help thinking that if that rule were really rigorously applied by everybody - and by 'rigorously applied' I mean applied in all cases and giving full effect to the width of its language - there would be many fewer complaints by successful litigants than there are at the present moment. It is a rule which is intended to give to the successful litigant a full indemnity for all costs reasonably incurred by him in relation to the action. It says in terms that the Taxing Master is to allow 'all such costs, charges and expenses, as shall appear to him to have been necessary or proper for the attainment of justice.' That is the whole principle that the Taxing Master has got to apply."
Nettlefold J believed that the Tasmanian Rules were more clearly apposite to the proposition stated by Atkin LJ than the rule then under consideration. He stated the following propositions at 6:
"1On every taxation the taxing officer shall allow all such costs, charges and expenses as shall appear to him to have been necessary or proper for the attainment of justice or for maintaining or defending the rights of any party (r 69).
2Costs which do not appear to the taxing officer to have been necessary or proper for the attainment of justice, or for maintaining or defending the rights of the party shall not be allowed to any party to be paid or borne by another party (part of r 68).
3Costs which appear to the taxing officer to have been incurred through over-caution, negligence, or mistake or merely at the desire of the party, shall not be allowed to any party to be paid or borne by another party (the balance of r 68).
In proposition 1 above the expression 'every taxation' obviously includes a party and party taxation as well as a taxation between party and party the costs being taxed as between solicitor and client.
Proposition 2 above appears to prohibit the allowance of costs beyond what is necessary or proper for the attainment of the purposes stated in the proposition.
Proposition 3 obviously prohibits the allowance of certain classes or costs against another party which might be payable by the client to his own solicitor.
If an order were made as requested by the defendant each of the above propositions 1, 2 and 3 would apply in the taxation. And it would seem to be quite fair that they should."
For the purposes of this judgment, the following propositions will be accepted:
That the Court has power to award costs on an indemnity basis by virtue of the Act, s12, and, if such be incorrect, possesses such power as part of its inherent jurisdiction.
That the Court has both a statutory and inherent power to award costs on a solicitor/client basis and that the provisions of the Rules of the Supreme Court, O24A, do not provide an exclusive basis for the exercise of such power.
That there is a distinction between indemnity costs and those made on a solicitor/client basis although in the view of the Court such distinction is of little consequence.
Compromise and indemnity costs
The action between the parties involved a number of causes of action concerning various financial claims made by the respondent. An offer of compromise was made by NML on 17 July, the terms of which, relevant to the matters which went to trial, were:
"National Mutual offers to settle all its claims against CPIA and all CPIA's claims against National Mutual in the Proceeding on the following basis:
…
3National Mutual makes no payment to CPIA in relation to the causes of action pleaded (ie, in relation to the causes of action determined on the trial) in paragraphs 25 to 31 inclusive in its Amended Counterclaim and there be an order dismissing those paragraphs (so pleaded).
4There be no order as to costs in relation to the causes of action pleaded … of CPIA's counterclaim or in respect of CPIA's defence.
…
This offer is open to be accepted by 4pm on 31 July 1997."
Leaving aside consideration of the modern commercial practice of placing limited time constraints on offers as a form of "tactical" pressure, it was nonetheless open to the defendant to accept the offer, or, even allowing for time constraints, to repeat that part of the offer relevant to these proceedings at a later date. It failed to exercise either option. The Calderbank offer (Calderbank v Calderbank [1976] Fam 93) was an appropriate form of an attempted resolution but its rejection did not necessarily expose the defendant to the possibility of an order for indemnity costs.
The offer in effect meant that NML would abandon its claim against CPIA in return for the abandonment of the relevant portion of the counterclaim and that each party would pay their own costs. The complication is that the offer was made as part of an overall offer of settlement. It is impossible to ascertain from the terms of the letter whether, had the defendant accepted only the terms of the offer but rejected other terms contained in the letter, NML would have effected compromise in relation to the matters relevant to the action as eventually determined. For the purpose of this application, the Court will accept that it was open for CPIA to reply in specific terms to the letter, or, at least, to reject the offer and make a counter offer setting out acceptance of those parts of the offer by NML outlined above. It did neither, and, for the purpose of this determination, the Court will proceed on the basis that NML offered to compromise its claim for the recovery of money on the basis that:
(a) it would forego its entitlement of moneys paid under mistake of fact and commission paid;
(b)in return for an abandonment of those portions of the counterclaim relating to the "Z" policies; and that
(c) each party would pay their own costs.
Such an approach is reasonable, but it does not necessarily result in an order for "indemnity costs". In a complex action (such as this) which contains a number of causes of action involving differing commercial transactions, it might be more productive (if costs are to be an issue) if the various components of an offer of compromise are separated and not made interdependent. An offer made, in which components are conceded (sometimes because of necessity or reality) but which includes other unacceptable terms is not an appropriate offer, at least so far as a costs order is concerned. If a party in a complex matter genuinely concerned as to the question of costs wishes to make compromise, then the terms of the offer should be expressed in its components and not necessarily made interdependent. However, it is accepted that theory is often more easily articulated than effected in practice.
NML made an offer of compromise. It chose not to make an offer of compromise as permitted by the Rules of the Supreme Court, O24A. At the time of the making of the offer, the pleadings by CPIA maintained claims relating to the "Z" policy transactions based on allegations of fraud, breach of trade practice and fair trading legislation. The offer comprised mutuality in that NML offered to forgo its claim (subject to assessment of interest) for a liquidated amount in return for the abandonment of a claim for damages. Whilst it might be true that the mere making of a Calderbank offer and its rejection, without more, might justify a costs order (John S Hayes & Associates Pty Limited v Kimberley-Clark (Aust) Pty Limited (1994) 52 FCR 201; MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236), there must at least exist strong circumstances militating against such an order. The extent of discretion in relation to costs, when an offer of compromise is made, is wide and ought favour the party making the offer (Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721). But, if a Calderbank offer is made rather than one permitted by the Rules of the Supreme Court, O24A, it does not follow that a costs order should be made on an indemnity basis as distinct from one made on a solicitor/client basis.
It was contended that the terms of O24A precluded NML from making an offer of compromise and that it had no option but to make the offer in the form that it did. It is said that Rules of the Supreme Court, O24A, r11, does not provide for the rejection of an offer made by a plaintiff who is responding to a counterclaim. The rule states:
"11 (1) Unless the Court or a judge otherwise orders, a plaintiff is entitled to an order for costs against the defendant taxed on a solicitor client basis if -
(a)the plaintiff has made an offer of compromise in accordance with this Order; and
(b)the defendant has not accepted the offer at the time of the judgment; and
(c)the judgment is no less favourable to the plaintiff than the terms of the offer.
(2) Unless the Court or a judge otherwise orders, a plaintiff is entitled to an order for costs against the defendant, up to and including the day on which an offer of compromise was served, taxed on a party and party basis and the defendant is entitled to an order for costs against the plaintiff in respect of the claim after service of the offer on a party and party basis if -
(a) the defendant has made the offer in accordance with this order; and
(b) the plaintiff has not accepted the offer at the time of the judgment; and
(c)the judgment is no more favourable to the plaintiff than the terms of the offer.
(3) For the purposes of this rule, the Court or judge is to disregard any amount of interest awarded to the plaintiff in relation to the period after the day on which the offer was served.
(4) For the purposes of subrule (3), the Court or judge may be informed of the fact that an offer of compromise has been served and of the date of service, but not of the terms of the offer.
(5) Subrules (1) and (2) do not apply unless the Court or judge is satisfied that the party making the offer was at all material times willing and able to carry out his or her part of the offer."
The anomaly was considered by Rolfe J in Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 in relation to similar but not identical rules and he concluded at 433:
"Each rule therefore assumes that the party making the 'successful offer' ie an offer which is not bettered by the order or judgment in favour of the offferee, is entitled to have costs paid on the bases stated 'unless the Court otherwise orders', the justification for that entitlement being nothing more than the making of a 'successful offer'. Rule 5 assumes that the plaintiff will recover some order or judgment and hence provides for the plaintiff's costs up to the making of the offer. There is no rule which provides for a defendant having made an offer where the plaintiff fails entirely, such that the plaintiff is not entitled to any costs. This is strange and gives rise to some of the difficulties. However, this court has held that where a completely successful defendant has made an offer of compromise, either by a document so entitled or by a Calderbank letter, to both of which I shall refer as an offer or an offer of compromise, the same principle should be applied, viz that as from the date of the offer the plaintiff should pay the defendant's costs on an indemnity basis, unless the court otherwise orders. Thus the obligation is on the plaintiff to satisfy the court that such an order should not be made, the presumption being that the making of the successful order prima facie entitles the defendant to costs at that level."
I am not prepared to conclude that the operation of O24A, r11, precludes a circumstance here considered and the anomaly (if such be the case) makes little difference to this determination. Even if NML had no option but to make its offer in a Calderbank form (and it made no attempt to do otherwise), it would be inappropriate to enable it to obtain an outcome better than that permitted by the order. That approach accords with the one taken by Nettlefold J in Electrona (supra) whilst restricting an award of indemnity costs (assuming there is a distinction with solicitor/client costs) to those special circumstances considered in Bartlett & Ors v Barclays Bank Trust Company Ltd (supra) and limits the use of costs as a form of punishment. Insofar as this approach differs from that taken in New South Wales (Packer v Meagher (1984) 3 NSWLR 486; Multicon (supra)), it should be borne in mind that a relevant statutory provision in that jurisdiction is the Supreme Court Act 1970 (NSW), s76(1), which states:
"76 — (1) …
(c) the Court may order costs to be assessed on the basis set out in Division 6 of Pt 11 of the Legal Profession Act 1987, or on an indemnity basis."
The approach taken by New South Wales courts is not reflected in decisions of the Federal Court (John S Hayes & Associates Pty Limited v Kimberly-Clark Australia Pty Limited (supra), Sanko Steamship Company Ltd v Sumitone Australia Ltd, Federal Court of Australia, 7 February 1996, unreported).
It is appropriate that the party making an offer, in open form, should have the benefit of an order for costs on a solicitor/client basis from the date of the making of the offer. It ought not be permitted the advantage of an indemnity order (assuming such to be an advantage) because of the making (even if compelled to do so by the absence of a rule) of a Calderbank offer.
Costs against third party
NML had no cause of action against Poulson and the nature of the counterclaim did not permit it to take the equivalent of third party proceedings against him. Poulson had a real personal interest in the outcome of the litigation and was responsible for the funding of the action by CPIA. The exercise of discretion was discussed in Multicon Engineering v Federal Airports (supra), and Bischof v Adams [1992] 2 VR 198. Central to any exercise of discretion is the requirement of connection, namely:
between the non-party and the proceedings; and
the existence of a causal connection between the non-party and costs.
There is no reason why the presence of a corporate veil should preclude a costs order against a controlling director who stands to benefit from the proceedings. In the circumstances of this case, but for two matters, the exercise of discretion would accord with the requirements of reason and justice (Symphony Group PLC v Hodgson [1994] QB 179). But careful consideration should be given to other remedies available or procedural steps required before the making of such an order. As Dawson J observed in Knight (supra) at 203:
"True it is that in general costs are not awarded against non-parties, but that is because it is generally inappropriate to do so. But I see nothing in the rule to prevent it being done in the exceptional case where it is appropriate to do so. Even the narrow view taken in England in In re Mills' Estate of O 65, r 1, which was that the object of that rule was not to confer a jurisdiction which did not previously exist but to regulate the manner in which the jurisdiction given to the court, and which the court had independently of the rule, was to be exercised, does not deny the existence of a jurisdiction to order a non-party to pay costs where appropriate. The wording of O 91, r 1 does not confine the discretion to award costs to the parties to the proceedings. The circumstances in which it would be appropriate to award costs to a non-party would necessarily be confined, but that is a question of discretion …"
(See also Re Ayre; ex parte Deputy Commissioner of Taxation (1995) 130 ALR 648 at 652, Bent v Gough (1992) 108 ALR 131 at 138.) NML was aware, at least since November 1996, of the financial position of CPIA. It had been aware, since the incorporation of the company, that it existed as a vehicle for Poulson to conduct his agency relationship with NML. Its own understanding of commercial reality would have made it aware that the sum of money paid by it in the form of commission would be unlikely to be held by CPIA as retained income or simply transformed into capital. At the time of the making of the counterclaim, it was able to appreciate the complexity and potential cost of the action brought against it. Prudence would have suggested that a search of the corporate records would reveal, in part, the financial standing of the company. With that information and its assessment, it was open for NML to seek an order for security for costs against CPIA with respect to the counterclaim. Dawson J addressed the potential remedy in his judgment in Knight (supra) when he stated at 204 - 205:
"Having regard to the limited nature of the appeal, I should do no more than observe that an order for security for costs must ordinarily be the appropriate remedy where a receiver and manager conducts litigation through a company which will be unable to pay the costs of the defendant if the defendant is successful in his defence. Moreover, as Mason CJ recognised in Devenish v Jewel Food Stores Pty Ltd, applications for security for costs should ordinarily be made promptly before significant expense is incurred."
McHugh J, although in dissent, considered the same question at 217 - 218:
"As a mater of policy, provision for security for costs is a better remedy for protecting persons involved in litigation with insolvent companies than ordering a receiver to pay the costs of litigation after verdict. Public policy does not preclude an insolvent company from bringing or defending an action. Where it does so, the ordinary remedy is to stay the action until security for costs is provided. If adequate security is sought and provided, no question of ordering a third party to pay the costs ought to arise. If a party does not seek adequate security for costs, after a receiver has been appointed, it is difficult to see how that party can justly complain that the receiver ought to pay those costs after the litigation has been completed. Furthermore, applications for security 'should be made promptly and before significant expense is incurred' by the company. It would be an odd result if, in the exercise of the Court's discretion, an application made before trial to provide security for costs was refused on the ground of delay but the court could make an order for costs against the receiver after verdict."
Although the position of a receiver might be considered different to that of a director of a solvent company, the remedy of an order for security for costs is a significant matter in any subsequent decision concerning third party costs (Preseed Pty Ltd v Colonial Mutual Insurance Company, unreported, Supreme Court of New South Wales, 10 June 1993; Shawnelle Pty Ltd v S R Juice Pty Limited, Federal Court of Australia, Gummow J, 20 August 1993). Where a security order has been refused, the attempt to obtain such a remedy would strengthen a subsequent application for a third party order. That third party would be aware that the capacity of the company, of which he or she was the controlling director, to meet a costs order was in issue and continued litigation might result in a costs order against that person. NML itself obtained such a remedy against CPIA in these proceedings with respect to the impending appeal (Chris Poulson Insurance Agencies Pty Ltd v National Mutual Life Association of Australasia Limited 86/1998). Failure to seek such an order weakens the prospect of a subsequent costs order.
A further significant factor in the exercise of discretion towards costs against a non-party is that of notice. On 8 April 1998, notice was given by NML that it would seek an order against Poulson personally. Until that date, Poulson might have had cause to believe that he could continue with the action by CPIA with personal immunity, protected as he was by the corporate shield. In Knight (supra), Dawson J, considered this aspect of procedural fairness in the following passage at 203:
"The wording of O 91, r 1 does not confine the discretion to award costs to the parties to the proceedings. The circumstances in which it would be appropriate to award costs to a non-party would necessarily be confined, but that is a question of discretion, not jurisdiction. I should add that the discretion to award costs is to be exercised judicially so that a person against whom costs may be awarded must, if not a party, be brought before the court. In many cases the convenient method of bringing him before the court would be to make him a party whereupon, even upon the appellants' argument, any problem of lack of jurisdiction would disappear."
It is difficult to see how, in the circumstances of this case, NML would have been able to join Poulson as a party, but it was well able to put him on notice, prior to trial, that in the event of success on its defence to the counterclaim it would look to him for its costs. Its failure to do so until April is a significant factor in the rejection of its application (see Symphony Group PLC v Hodgson (supra); Forest Pty Ltd v Kean Bay Pty Ltd [1991] 4 ACSR 107). This was not a case totally devoid of merit (Oz B and S Pty Ltd v Elders IXL Ltd (1993) 117 ALR 128; Yates Property Corporation v Boland(No 2) (1997) 147 ALR 685); and Poulson might have been prepared to risk his own money in payment of CPIA's costs, but have reconsidered if he believed there was further risk occasioned by the requirement that he personally pay the costs of NML. NML is entitled to its costs against Poulson only from the date of notice.
Conclusion
It follows from the above that the defendant ought pay costs on a solicitor/client basis as and from 31 July 1997, and that Poulson ought pay costs on a similar basis since 8 April 1998, although it does not follow that he should be required to pay costs other than on a party/party basis with respect to the costs application. The distinction between the two forms of costs orders, as discussed by Nettlefold J in Electrona (supra) can be best considered on the taxation of costs. But insofar as there may be a distinction, it might be appropriate that Poulson have the benefit of it. The costs application was a necessary incident to the proceedings and there was merit in the respective arguments of both parties. The parties will be permitted the opportunity to make further submissions in relation to the costs application.
Orders
That that the defendant pay the plaintiff's costs of and incidental to the plaintiff's claim to be taxed.
That in relation to the costs of and incidental to the counterclaim:
(a)the defendant pay the plaintiff's costs on a party/party basis from the date of the counterclaim until 31 July 1997;
(b)that the defendant pay the plaintiff's costs on a solicitor/client basis from 31 July 1997 until 8 April 1998.
That Christopher Poulson pay the applicant's costs of and incidental to the proceedings (other than the costs proceedings) on a solicitor/client basis from 8 April 1998.
Counsel will be afforded the opportunity to make submissions in relation to the precise terms of the orders, any consequential orders and as to the issue of costs of this application.
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