New Resource Holdings Pty Ltd v Lunt [No 4]

[2009] WASC 29

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   NEW RESOURCE HOLDINGS PTY LTD -v- LUNT [No 4] [2009] WASC 29

CORAM:   TEMPLEMAN J

HEARD:   ON THE PAPERS

DELIVERED          :   13 FEBRUARY 2009

FILE NO/S:   CIV 1489 of 2001

BETWEEN:   NEW RESOURCE HOLDINGS PTY LTD (ACN 009 248 999)

Plaintiff

AND

WILLIAM TREVOR LUNT
First Defendant

WASTE RECOVERY SYSTEMS LTD
Second Defendant

Catchwords:

Costs - Application for summary judgment decided by outcome of trial - Whether application for indemnity costs should be taxed on same basis - Whether indemnity costs on application to reopen - No order as to costs of plaintiff investigating existence of a defendant

Legislation:

Nil

Result:

Plaintiff have indemnity costs of summary judgment application
Plaintiff have costs of application for indemnity costs
First Defendant pay costs of the application to reopen

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance

First Defendant              :     No appearance

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Vincent Partners

First Defendant              :     B W Duckham & Co

Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435

New Resource Holdings Pty Ltd v Lunt [No 3] [2008] WASC 221

1. TEMPLEMAN J:  In my reasons dated 15 October 2008 in New Resource Holdings Pty Ltd v Lunt [No 3] [2008] WASC 221 [110], I proposed various cost orders, which would take effect unless any party objected within seven days.

2. The plaintiff's solicitors have since raised a number of issues.  They have provided submissions, to which Mr Lunt's solicitors have responded.

3. In light of these submissions, I now deal with those issues:

The costs of Mr Lunt's application for summary judgment

1. On 27 May 2004, Master Newnes (as his Honour then was) dismissed Mr Lunt's summary judgment application and ordered that costs be in the cause.

2. The summary judgment application was supported by an affidavit sworn by Mr Lunt on 24 March 2003, in which he deposed to the fact that the plaintiff's balance sheet did not disclose the plaintiff's claim.

3. However, the application was supported also by an affidavit of Kevin Bond sworn 30 June 2003 in which it was said that all of the plaintiff's shareholders had signed a Waiver of Pre‑emptive Rights.

4. On the facts as I found them to be, Mr and Mrs Briggs did not sign any such document, as Mr Lunt knew.

5. In my view, the costs of the summary judgment application should be viewed in light of the facts found subsequently, which demonstrate that the application should not have been brought.

6. I therefore consider that the plaintiff should have its costs of the summary judgment application on an indemnity basis.

7. The plaintiff contends that there should be an order for the costs of the application to be taxed and paid now, despite the existence of the suspension order.  The basis for this contention is that the summary judgment application 'is discrete from the action'.

8. I do not accept that contention. The costs of the application were ordered to be in the cause and therefore form part of the judgment which was suspended. Had that not been the case, I would have made an order under s 15(4) of the Civil Judgments Enforcement Act 2004 (WA) and exempted the costs (or some of them) from the effect of the order.

The terms of the suspension order

1. The plaintiff seeks to have inserted in the suspension order a provision for liberty to apply on 72 hours' notice.  This is on the basis that one of the reasons for granting an order was that there was unlikely to be any great delay in bringing Mr Lunt's actions to trial.

2. The actions have now been listed for trial on 23 - 27 February 2009.  That being so, I see no reason to provide for liberty to apply in the suspension order.

3. For the reasons given above, the order applies to the judgment and to the costs of the action.

The costs of the plaintiff's application of 6 August 2008 for indemnity costs

1. The plaintiff submits that because I ordered Mr Lunt to pay its costs of the action on an indemnity basis, its costs of the application for indemnity costs should be taxed on the same basis.

2. I do not accept that submission.  The plaintiff has not identified any impropriety of Mr Lunt in relation to his opposition to the application, or other conduct which would justify an order for indemnity costs.

3. In those circumstances, the costs should be taxed in accordance with the appropriate determination, if not agreed.

The costs of Mr Lunt's application dated 25 August 2008 for leave to reopen and other orders

1. The plaintiff submits that it should be awarded the costs of these applications on an indemnity basis because the main order sought (the application to reopen) was bound to fail, as judgment had already been extracted.

2. As appears from my reasons dated 15 October 2008, I did not dismiss the application to reopen on the ground that the judgment had been extracted.  Rather, it was because I concluded that in the circumstances urged on me by Mr Lunt, he really required a new trial.

3. If Mr Lunt's contentions prove to be well founded, it would follow that Mr and Mrs Briggs (whether intentionally or not) must have given evidence which was untrue.  In those circumstances, it is, I think at least arguable that the entry of the judgment would not have been a bar to reopening:  see Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435, 444.

4. In these circumstances, I think the appropriate order is for Mr Lunt to pay the costs of the application, to be taxed in accordance with the appropriate determination, if not agreed.

The plaintiff's application of 17 October 2005 for costs thrown away by reason of the second defendant having ceased to exist

1. The plaintiff submits that either Mr Lunt pay its and Mr Duckham's costs of the application on an indemnity basis, or that there be no order as to costs.

2. I am informed by Mr Duckham that Mr Lunt will accept an order that there be no order as to costs:  and that there are no costs payable to him in any event.

3. In the circumstances, I direct that there be no order as to the costs of the plaintiff's application of 17 October 2005.