Pauls Ltd v Dwyer - [2001] QSC 103

SUPREME COURT OF QUEENSLAND

CITATION: Pauls Limited v Dwyer & Ors [2001] QSC 103

PARTIES: PAULS LIMITED ABN 2300698015
(applicant)
v
JENNIFER MARY DWYER & ORS
(respondents) FILE NO/S: S 8241/00

DIVISION: Trial

DELIVERED ON: 11 April 2001

DELIVERED AT: Brisbane

HEARING DATE: 15 January 2001

JUDGE: Douglas J

ORDER:1) As between the applicant and Milly Elkington, that the applicant pay the costs of the respondent Milly Elkington, of and incidental to the application including reserved costs, to be assessed on the standard basis, but that the respondent Milly Elkington not recover any costs:
(a) of and incidental to the application determined on 10
November 2000;
(b) of and incidental to the application determined on 11
December 2000; and
(c) of and incidental to seeking disclosure of documents by the applicant that it was a 90% holder in Pauls Victoria Limited.
2) As between Dr Gordon Elkington and Mr Robert Catto that there be no orders as to costs in respect of the application.

CATCHWORDS: PROCEDURE – COSTS – JURISDICTION – GENERAL
Corporations Law s 664F(4)
PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OUT OF A FUND – WHEN COSTS ALLOWED OUT OF A FUND – OTHER CASES – whether this is a case where the 90% shareholder must bear the costs that a person incurs on legal proceedings in relation to an application under the Corporations Law
PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – MISCONDUCT – VEXATIOUS PROCESS AND ISSUES – whether the respondent’s application to transfer the
2

application to the Supreme Court of New South Wales was improper and vexatious

COUNSEL: K N Wilson for applicant
S Wheelhouse and S Benson for respondent
Mr R. Catto self-represented respondent
Dr Elkington self-represented respondent

SOLICITORS: Biggs and Biggs Solicitors for applicant
Stephen Blanks and Associates for respondent

[1] DOUGLAS J: I gave judgment in this matter on 13 March 2001 (2001 QSC 67). At that time I reserved the question of costs and directed that the parties forward to me written submissions in relation to that matter. I received written submissions from all of the parties represented at the Trial.

[2] The regime for costs in a matter such as this is governed by s 664F(4) Corporations

Law (“the Law”) which provides:

“The 90% holder must bear the costs that a person incurs on legal proceedings in relation to the application unless the Court is satisfied that the person acted improperly, vexatiously or otherwise unreasonably. The 90% holder must bear their own costs.”

[3] In the ordinary case costs would follow the event unless it was otherwise ordered. The applicant does not argue that the respondent, Milly Elkington, should not recover her costs, in the main, with respect to the application. The applicant argues that she should not recover certain reserved costs. They are with respect to applications heard on 20 October 2000, 10 November 2000, 11 December 2000, and 14 December 2000.

[4] The…

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.

Continue reading Pauls Ltd v Dwyer

Details

AGLC: Pauls Ltd v Dwyer [2001] QSC 103
Case: [2001] QSC 103
Decision Date: 11/04/2001

CaseChat Overview and Summary

In the case of Pauls Limited v Dwyer, the Supreme Court of Queensland assessed the costs incurred by the respondents in a legal application related to a compulsory acquisition of shares under the Corporations Law. Pauls Limited, a 90% shareholder, applied to acquire the remaining shares in Pauls Victoria Limited from the respondents, Jennifer Mary Dwyer, Gordon Elkington, and Robert Catto. The central legal issue was whether Pauls Limited should bear the costs of the respondents' legal proceedings, as mandated by section 664F(4) of the Corporations Law, or if any misconduct by the respondents warranted a departure from this rule. The court found that while the 90% shareholder generally bears the costs, certain actions by the respondents could render them liable for their own costs. The court determined that Milly Elkington, one of the respondents, should not recover costs for an unsuccessful application to transfer the case to another jurisdiction, for the respondents' failure to comply with procedural requirements, or for costs associated with seeking disclosure of documents concerning Pauls Limited's shareholding. The court concluded that these actions were either not improper, vexatious, or unreasonable, or were caused by the respondents' own defaults.

Douglas J held that the application to transfer the case to the Supreme Court of New South Wales, although unsuccessful, was not unreasonable or vexatious because it had some chance of success and the balance of convenience did not favor transferring the matter. However, the respondents were not entitled to costs for the failure to provide a compliant statement of issues and expert reports, as these failures were due to the respondents' defaults. Regarding the unsuccessful constitutional challenge, the court found that the respondents' application was not unreasonable or vexatious and that the costs should fall within the scope of section 664F(4). The court further held that Milly Elkington should not recover costs related to the issue of Pauls Limited's shareholding in Pauls Victoria Limited, as this issue was raised unreasonably. Additionally, the court ruled that Dr Gordon Elkington and Mr Robert Catto, who were self-represented, should not be allowed any costs for their representation, as their interests were aligned with those of Milly Elkington, who was represented by solicitors and counsel.

Orders