Pascoe Industries Pty Ltd v Raisbeck
[2015] WASC 476
•9 DECEMBER 2015
PASCOE INDUSTRIES PTY LTD -v- RAISBECK [2015] WASC 476
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 476 | |
| 09/12/2015 | |||
| Case No: | COR:61/2015 | 15 SEPTEMBER & 6 OCTOBER 2016 | |
| Coram: | MASTER SANDERSON | 6/10/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Costs orders made | ||
| B | |||
| PDF Version |
| Parties: | PASCOE INDUSTRIES PTY LTD JAMST (AUST) PTY LTD JAMES CONSTANTINE TSERONIS LEE HARRY RAISBECK DEREK ANTHONY DUPLESSIS CALYCO PTY LTD L & K RAISBECK PTY LTD ALEXANDER & SPENCER PARTNERS PTY LTD |
Catchwords: | Costs Action not proceeding Action of first and second defendants such that costs order made against them Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
JAMST (AUST) PTY LTD
Second Plaintiff
JAMES CONSTANTINE TSERONIS
Third Plaintiff
AND
LEE HARRY RAISBECK
First Defendant
DEREK ANTHONY DUPLESSIS
Second Defendant
CALYCO PTY LTD
Third Defendant
L & K RAISBECK PTY LTD
Fourth Defendant
ALEXANDER & SPENCER PARTNERS PTY LTD
Fifth Defendant
Catchwords:
Costs - Action not proceeding - Action of first and second defendants such that costs order made against them - Turns on own facts
Legislation:
Nil
Result:
Costs orders made
Category: B
Representation:
Counsel:
First Plaintiff : Mr K C B Staffa
Second Plaintiff : Mr K C B Staffa
Third Plaintiff : Mr K C B Staffa
First Defendant : Mr W C Zappia
Second Defendant : Mr W C Zappia
Third Defendant : Mr W C Zappia
Fourth Defendant : Mr W C Zappia
Fifth Defendant : Mr W C Zappia
The Liquidators : Mr J Scovell
Solicitors:
First Plaintiff : Legal Success Pty Ltd
Second Plaintiff : Legal Success Pty Ltd
Third Plaintiff : Legal Success Pty Ltd
First Defendant : Norgate Dolphin McLean
Second Defendant : Norgate Dolphin McLean
Third Defendant : Norgate Dolphin McLean
Fourth Defendant : Norgate Dolphin McLean
Fifth Defendant : Norgate Dolphin McLean
The Liquidators : Douros Jackson
Case(s) referred to in judgment(s):
Nil
1 MASTER SANDERSON: This judgment has to do with the question of costs. The plaintiffs commenced the action seeking an order Calyco (Aust) Pty Ltd be wound up. There were a number of grounds upon which the application was made but essentially the plaintiffs relied on the so-called just and equitable ground. To explain the costs order I eventually made it is necessary to set out the background.
2 On 21 May 2015 the action was listed for hearing for three days commencing on 15 September 2015. On 28 August 2015 without any notice to the plaintiffs the first and second defendants appointed liquidators to Calyco (Aust) Pty Ltd. There is no explanation as to why the appointment was made without any notice to the plaintiffs or their solicitors.
3 The appointment was made two weeks before the hearing of the three day trial. The plaintiffs alleged, and I accepted, the intention to appoint liquidators was concealed from the plaintiffs by the first and second defendants. The plaintiffs allege, and once again I accept, that had there been reasonable conferral costs incurred by the plaintiffs in preparing for trial could have been saved. Really what the first and second defendants engaged in was nothing more or less than an abuse of the court process. If they had reached the conclusion Calyco (Aust) Pty Ltd was insolvent and needed to be wound up then they could have communicated that fact to the plaintiffs and their solicitors well before 28 August 2015.
4 In the circumstances it was my view the plaintiffs were entitled to their costs in the winding up application on a full indemnity basis and I made orders accordingly. When the plaintiffs became aware the liquidators had been appointed they filed an interlocutory process seeking to remove the liquidators. This was done on 3 September 2015. Essentially the plaintiffs argument was they had been proposing liquidators and the appointment of the fifth defendant was opportunistic. They sought to have a liquidator appointed in whom they had confidence. When the matter came on for hearing there was some limited argument on this question. I indicated to counsel for the plaintiffs I could see no reason on the face of the documents why the duly appointed liquidators could not continue. They were eminently qualified and there was nothing to suggest they would not bring independent minds to the liquidation. Faced with that strong indication of the way in which the matter would be resolved the plaintiffs withdrew their objection to the appointment and the matter was resolved on that basis. The outstanding question was the question of costs.
5 The plaintiffs sought their costs against the liquidators on the application for removal on a full indemnity basis. The liquidators opposed the application and sought their costs. In the end I was not satisfied any order for costs should be made. As I had indicated to counsel for the plaintiffs I could see no reason on the face of the papers why the liquidators appointed should be removed. But equally I could see no real reason why the plaintiffs should bear the liquidators' costs. Any prudent liquidator would have made enquiries as to proceedings which were on foot and would have communicated with the plaintiffs prior to their appointment. That was not done. In the circumstances I saw no reason why the plaintiffs who were the innocent parties in all of these events should be ordered to pay costs.
6 The orders made reflect these reasons and the orders were to take effect upon publication of these reasons.
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