Pacific Mobile Phones Pty Ltd, Re (No 2) - [2008] QSC 214

SUPREME COURT OF QUEENSLAND

CITATION:

Re: Pacific Mobile Phones Pty Ltd (No 2) [2008] QSC 214

PARTIES:

COMMONWEALTH BROADCASTING CORPORATION PTY LTD

(applicant)

V

PACIFIC MOBILE PHONES PTY LTD

ACN 080 259 730

(respondent)

FILE NO/S:

5908 of 2008

DIVISION:

Trial Division

PROCEEDING:

Winding-up application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

10 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

White J

ORDER:

The applicant pay the respondent’s costs of and incidental to the application, including the interlocutory application filed by the respondent opposing the orders sought, to be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – the applicant persisted in an application to wind-up the respondent in circumstances where it constituted an abuse of process – the application was refused – whether the respondent should have its costs on the indemnity basis

Corporations Act 2001 (Cth), s 1335

CGUW Workers Compensation (Vic) Ltd v Carousel Bar Pty Ltd (No. 2) [1999] VSC 237, cited
Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, applied
Cosgrove and Anor v Johns [2000] QCA 157 (6 June 2000), cited
Martinovic v Chief Executive, Queensland Transport [2005] 1 Qd R 502, cited

Re: Pacific Mobile Phones Pty Ltd [2008] QSC 210, related

COUNSEL:

Mr C Coulsen for the applicant

Mr C Wilson for the respondent

SOLICITORS:

Hall Lawyers for the applicant

DLA Phillips Fox for the respondent

The applicant sought an order winding up the respondent in deemed insolvency. That application was dismissed[1]. The respondent seeks its costs of and incidental to the application and other reserved costs on the indemnity basis. The applicant was given an opportunity to respond to the respondent’s written submissions about costs and did so by letter dated 3 September 2008 in the following terms:
[1]Re: Pacific Mobile Phones Pty Ltd [2008] QSC 210.

“Bearing in mind, the findings made in paragraph 31(2) of the reasons for judgment we do not believe that there is anything further we can add with respect to the issue of costs.”

It is not clear if that is an acceptance of the application for costs to be assessed on the indemnity basis, but paragraph 31(2) states:

“If there was service of the statutory demand the applicant knew that the respondent had no notice of it within a day of posting the statutory demand; had adequate information about the respondent to bring the statutory demand to the respondent’s actual notice; brought the winding-up application when an application to set aside the judgment in default of appearance had been listed for hearing; and persisted in that application after the judgment had been set aside so as to characterise the pursuit of the winding up of the company as an abuse of process.”

Accordingly, the letter may well be a concession that costs ought to be awarded on the indemnity basis.

The costs of any proceeding before the court under the Corporations…

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: [2008] QSC 214
Decision Date: 10 September 2008

CaseChat Overview and Summary

Pacific Mobile Phones Pty Ltd sought to wind up the respondent, which resulted in the respondent filing an application to have the proceedings dismissed for abuse of process. The case was heard in a relevant Australian court. The primary issue before the court was whether the applicant's persistence in the winding-up application, despite clear indications of futility and bad faith, warranted an order for the respondent to receive costs on an indemnity basis.

The court examined the circumstances surrounding the applicant's conduct in pursuing the winding-up application. It found that the applicant had an improper purpose and continued with the application despite knowing it was without merit. This persistence amounted to an abuse of the court process. Given this, the court considered it appropriate to order costs on an indemnity basis to compensate the respondent fully for the unnecessary legal expenses incurred.

Consequently, the court ruled that the applicant must pay the respondent's costs of and incidental to the application, including those related to the interlocutory application filed by the respondent, to be assessed on the indemnity basis. This decision underscores the court's power to order indemnity costs in cases of abuse of process.

Orders

Orders of the court

The applicant pay the respondent’s costs of and incidental to the application, including the interlocutory application filed by the respondent opposing the orders sought, to be assessed on the indemnity basis.

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:	Re: Pacific Mobile Phones Pty Ltd (No 2) [2008] QSC 214
PARTIES:	COMMONWEALTH BROADCASTING CORPORATION PTY LTD (applicant) V PACIFIC MOBILE PHONES PTY LTD ACN 080 259 730 (respondent)
FILE NO/S:	5908 of 2008
DIVISION:	Trial Division
PROCEEDING:	Winding-up application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	10 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	White J
ORDER:	The applicant pay the respondent’s costs of and incidental to the application, including the interlocutory application filed by the respondent opposing the orders sought, to be assessed on the indemnity basis.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – the applicant persisted in an application to wind-up the respondent in circumstances where it constituted an abuse of process – the application was refused – whether the respondent should have its costs on the indemnity basis Corporations Act 2001 (Cth), s 1335 CGUW Workers Compensation (Vic) Ltd v Carousel Bar Pty Ltd (No. 2) [1999] VSC 237, cited Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, applied Cosgrove and Anor v Johns [2000] QCA 157 (6 June 2000), cited Martinovic v Chief Executive, Queensland Transport [2005] 1 Qd R 502, cited Re: Pacific Mobile Phones Pty Ltd [2008] QSC 210, related
COUNSEL:	Mr C Coulsen for the applicant Mr C Wilson for the respondent
SOLICITORS:	Hall Lawyers for the applicant DLA Phillips Fox for the respondent