Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 7]
[2012] WASC 502 (S)
PERDAMAN CHEMICALS AND FERTILISERS PTY LTD -v- THE GRIFFIN COAL MINING COMPANY PTY LTD [No 7] [2012] WASC 502 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 502 (S) | |
| 02/01/2013 | |||
| Case No: | CIV:1925/2011 | 21 DECEMBER 2012 | |
| Coram: | EDELMAN J | 21/12/12 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Orders made; costs reserved | ||
| B | |||
| PDF Version |
| Parties: | PERDAMAN CHEMICALS AND FERTILISERS PTY LTD THE GRIFFIN COAL MINING COMPANY PTY LTD LANCO INFRATECH LTD LANCO RESOURCES AUSTRALIA PTY LTD RUSSELL CONLEY MANOJ AGARWAL LAGADAPATI MADHUSUDHAN RAO KANDIMALLA K V NAGA PRASAD LANCO RESOURCES INTERNATIONAL PTE LTD S AMARENDRAN VIKAS RAMBAL ANDREAS WALEWSKI |
Catchwords: | Practice and procedure Costs Whether successful defendant to an application for provisional winding up should be entitled to order that the plaintiff pay its costs |
Legislation: | Nil |
Case References: | Jingellic Minerals NL v Beach Petroleum NL (No 3) (Unreported, SASC, 2 September 1991) Johnson v Cetin [2011] WASC 344 Kamper v Applied Soil Technology Pty Ltd [2003] NSWSC 1017 Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 7] [2012] WASC 502 Topseal Concrete Services Pty Ltd v Sika Australia Pty Ltd [2008] WASC 57 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- CIV 2422 of 2011
CIV 2423 of 2011
CIV 3201 of 2011
Consolidated by orders dated 18 August 2011 & 14 November 2011
- Plaintiff
AND
THE GRIFFIN COAL MINING COMPANY PTY LTD
First Defendant
LANCO INFRATECH LTD
Second Defendant
LANCO RESOURCES AUSTRALIA PTY LTD
Third Defendant
RUSSELL CONLEY
Fourth Defendant
- MANOJ AGARWAL
Fifth Defendant
LAGADAPATI MADHUSUDHAN RAO
Sixth Defendant
KANDIMALLA K V NAGA PRASAD
Seventh Defendant
LANCO RESOURCES INTERNATIONAL PTE LTD
Eighth Defendant
S AMARENDRAN
Ninth Defendant
(BY ORIGINAL ACTION)
THE GRIFFIN COAL MINING COMPANY PTY LTD
Plaintiff
AND
PERDAMAN CHEMICALS AND FERTILISERS PTY LTD
First Defendant
VIKAS RAMBAL
Second Defendant
ANDREAS WALEWSKI
Third Defendant
(BY COUNTERCLAIM)
- Plaintiff
- AND
THE GRIFFIN COAL MINING COMPANY PTY LTD
Defendant
Catchwords:
Practice and procedure - Costs - Whether successful defendant to an application for provisional winding up should be entitled to order that the plaintiff pay its costs
Legislation:
Nil
Result:
Orders made; costs reserved
Category: B
Representation:
CIV 1925 of 2011
CIV 2422 of 2011
CIV 2423 of 2011
CIV 3201 of 2011
Consolidated by orders dated 18 August 2011 & 14 November 2011
Original Action
Counsel:
Plaintiff : Mr M L Bennett
First Defendant : Mr C G Colvin SC & Mr N J Landis
- Second Defendant : Mr C G Colvin SC & Mr N J Landis
Third Defendant : Mr C G Colvin SC & Mr N J Landis
Fourth Defendant : Mr C G Colvin SC & Mr N J Landis
Fifth Defendant : Mr C G Colvin SC & Mr N J Landis
Sixth Defendant : Mr C G Colvin SC & Mr N J Landis
Seventh Defendant : Mr C G Colvin SC & Mr N J Landis
Eighth Defendant : No appearance
Ninth Defendant : Mr C G Colvin SC & Mr N J Landis
Intervener : Mr P Evans
Solicitors:
Plaintiff : Bennett & Co
First Defendant : Clifford Chance
Second Defendant : Clifford Chance
Third Defendant : Clifford Chance
Fourth Defendant : Clifford Chance
Fifth Defendant : Clifford Chance
Sixth Defendant : Clifford Chance
Seventh Defendant : Clifford Chance
Eighth Defendant : Tottle Partners
Ninth Defendant : Clifford Chance
Intervener : State Solicitor for Western Australia
Counterclaim
Counsel:
Plaintiff : Mr C G Colvin SC & Mr N J Landis
First Defendant : Mr M L Bennett
Second Defendant : Mr S Penglis
Third Defendant : Mr S Penglis
Solicitors:
Plaintiff : Clifford Chance
First Defendant : Bennett & Co
Second Defendant : Herbert Smith Freehills
Third Defendant : Herbert Smith Freehills
COR 190 of 2012
Counsel:
Plaintiff : Mr M L Bennett
Defendant : Mr C G Colvin SC & Mr N J Landis
Solicitors:
Plaintiff : Bennett & Co
Defendant : Clifford Chance
Case(s) referred to in judgment(s):
Jingellic Minerals NL v Beach Petroleum NL (No 3) (Unreported, SASC, 2 September 1991)
Johnson v Cetin [2011] WASC 344
Kamper v Applied Soil Technology Pty Ltd [2003] NSWSC 1017
Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 7] [2012] WASC 502
Topseal Concrete Services Pty Ltd v Sika Australia Pty Ltd [2008] WASC 57 (S)
(Page 6)
- EDELMAN J:
(This judgment was delivered orally immediately after the hearing on 21 December 2012 and has been edited from the transcript.)
1 The only issue which arises in relation to the appropriate orders following my reasons for decision this afternoon is whether an order should be made in COR 190 of 2012, in the terms sought by Griffin Coal, that Perdaman pay Griffin Coal's costs of the application to be taxed if not agreed. Griffin Coal also says that the order should provide that costs shall include 50% of the costs of the hearings on 30 November 2012 and 13 December 2012.
2 Both parts of the proposed order are opposed by Perdaman. Perdaman says that the costs should be reserved. It may be that if the order for costs were to be made then a 50% division according to the two days of hearing for the costs of those two days would be appropriate on the basis that it may be extremely difficult, if not impossible, to divide accurately the time spent during the hearing days on the interlocutory injunction application and the time spent on the application for appointment of a provisional liquidator. However at this stage it is not necessary to reach any concluded view as to that point, for reasons which I will explain.
3 The primary question is whether it is appropriate that an order for costs for the application for a provisional liquidator should now be made or whether that costs order should be reserved.
4 It is common ground that in relation to an interlocutory injunction the usual position is that an order on an interlocutory injunction application is that costs be in the cause (or be reserved): Topseal Concrete Services Pty Ltd v Sika Australia Pty Ltd [2008] WASC 57 (S) [5] (Beech J). As I explained in Johnson v Cetin [2011] WASC 344 [52], one reason for this usual approach is that an applicant's alleged rights upon which an interlocutory injunction is based might not be established at trial. Alternatively, if the interlocutory injunction is refused it may be established at trial that the rights which the applicant sought to protect by an interlocutory injunction are, in fact, established.
5 It may be that the usual approach in a situation in which an application is made for the appointment of a provisional liquidator is the reverse. In the case of an application for a provisional liquidator, it may be more likely that the 'outcome of the proceedings will not cast light on what the appropriate costs order concerning the interlocutory application
(Page 7)
- should be': see Kamper v Applied Soil Technology Pty Ltd [2003] NSWSC 1017 [37] (Campbell J, as his Honour was then). See also Jingellic Minerals NL v Beach Petroleum NL (No 3) (Unreported, SASC, 2 September 1991) (Zelling AJ).
6 The reason why the approach to provisional liquidation applications may generally be different is that the assessment of whether a provisional liquidator should be appointed will often depend heavily on facts as they are assessed at the date of the hearing. This is the essence of one part of a significant factor in the exercise of the Court's discretion, namely asking whether, on the facts presently before the Court, there is a 'reasonable prospect' or it is 'likely' or there is a 'prima facie case' that the company will be wound up in insolvency. In my principal reasons I emphasised that the facts upon which I was relying were those which were currently before the Court: see Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 7] [2012] WASC 502 [236], [253], [297]. For this reason it is arguable, and was argued by Griffin Coal, that an immediate costs order should be made in favour of Griffin Coal.
7 If I were satisfied that the only matters which were likely to affect any order in favour of Perdaman on the final winding up application (assuming one proceeds) are facts which would arise from events subsequent to this hearing then it would be appropriate to make an immediate costs order for this application in favour of Griffin Coal. However, I accept, as should be apparent from my reasons, that there is a prospect that the final winding up application could be decided upon facts which currently exist but which might lead to a different conclusion in light of further evidence. A number of examples were given by counsel for Perdaman. Those examples concern (i) the strength of the claim concerning the existence of a potential contract with QUBE Logistics; (ii) the detail of a cash flow analysis, which in this interlocutory application was necessarily only a preliminary analysis, and (iii) other matters which relate to the reasonableness of factual assessments by various officers which were only considered in a preliminary way on the interlocutory application.
8 If it were the case that based upon the same information, although considered in more detail, the result of a final hearing were to be different and a winding up order were to be made in Perdaman's favour, then it may be that an appropriate order could be that costs of the interlocutory application for an appointment of a provisional liquidator would be ordered in favour of Perdaman. For that reason, I consider that the
(Page 8)
- appropriate order as to costs of the application for appointment of a provisional liquidator in COR 190 of 2012 is that they be reserved. It is also convenient to reserve those costs to be dealt with at the same time as the costs of the interlocutory application in CIV 1925 of 2011 in circumstances in which (i) the interlocutory applications were heard concurrently and concerned overlapping matters, and (ii) it is common ground that the appropriate course in CIV 1925 of 2011 is that costs be reserved.
9 For these reasons, the orders that I make, as set out below, are as proposed by Griffin Coal with the exception that order two in COR 190 of 2012 be that costs of the application be reserved.
In CIV 1925 of 2011:
1. Until determination of the plaintiff’s claims in CIV 1925 of 2011 (consolidated with CIV 2422 of 2011, CIV 2423 of 2011 and CIV 3201 of 2011) or further order, The Griffin Coal Mining Company Pty Ltd (Griffin Coal) whether by its directors, officers, servants and agents be and is hereby restrained from:
(a) entering into any agreement or arrangement with ICICI or any of the members of the Syndicate which it represents in which the maximum amount payable to the Syndicate under the Facility Agreement between ICICI Bank Limited, Singapore Branch (as agent on behalf of the Syndicate) and Lanco Resources International Pte Ltd and others dated 9 February 2011 and in relation to the Negative Pledge Deed dated 21 June 2011 between the Syndicate and Griffin Coal and others, from all proceeds recovered from the enforcement of all securities given over the assets and undertakings of Griffin Coal and in priority to the unsecured creditors of Griffin Coal, exceeds AUS$150,000,000; and
(b) giving security over all of the assets of Griffin Coal unless that security is subject to:
(i) any security interest which Griffin Coal may be required to provide to Perdaman pursuant to any order of any government agency or court in respect of Supreme Court Action CIV 1925 of 2011 (consolidated with CIV 2422 of 2011, CIV 2423 of 2011 and CIV 3201 of 2011) or other litigation
- commenced by Perdaman in respect of the coal supply agreement between Griffin Coal and Perdaman dated 21 December 2010 (Perdaman CSA) to give effect to the proposed security arrangements contemplated by the Perdaman CSA; and
- (ii) any security interest which Perdaman has as at the date of this order as equitable mortgagee or charge (if any).
- 2. The plaintiff's application for an interlocutory injunction be otherwise dismissed.
3. There be liberty to the defendants to apply to vary the terms of restraint imposed by paragraph 1 on 10 business days' notice.
4. Costs reserved with liberty to apply.
In COR 190 of 2012:
1. The plaintiff's application for the appointment of a provisional liquidator be dismissed.
2. The costs of the application be reserved.
0
4
0