Permanent Custodians Ltd as trustee for and Under the Master Trust Deed Establishing the Rural Program v Elite Grains Pty Ltd [No 2]
[2016] WASC 238 (S)
•13 SEPTEMBER 2016
PERMANENT CUSTODIANS LTD AS TRUSTEE FOR AND UNDER THE MASTER TRUST DEED ESTABLISHING THE RURAL PROGRAM -v- ELITE GRAINS PTY LTD [No 2] [2016] WASC 238 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 238 (S) | |
| Case No: | CIV:2473/2012 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 13/09/16 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Orders issued | ||
| B | |||
| PDF Version |
| Parties: | PERMANENT CUSTODIANS LTD AS TRUSTEE FOR AND UNDER THE MASTER TRUST DEED ESTABLISHING THE RURAL PROGRAM ELITE GRAINS PTY LTD RODNEY NORMAN CULLETON IOANNA CULLETON |
Catchwords: | Practice and procedure Dispositive orders Implementation Reasons for decision Costs orders Exchange of minutes Turns on own facts |
Legislation: | Nil |
Case References: | Permanent Custodians Ltd v Elite Grains Pty Ltd [No 2] [2016] WASC 238 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ELITE GRAINS PTY LTD
First Defendant
RODNEY NORMAN CULLETON
Second Defendant
IOANNA CULLETON
Third Defendant
Catchwords:
Practice and procedure - Dispositive orders - Implementation - Reasons for decision - Costs orders - Exchange of minutes - Turns on own facts
Legislation:
Nil
Result:
Orders issued
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : Corrs Chambers Westgarth
First Defendant : No appearance
Second Defendant : In person
Third Defendant : In person
Case(s) referred to in judgment(s):
Permanent Custodians Ltd v Elite Grains Pty Ltd [No 2] [2016] WASC 238
1 KENNETH MARTIN J: On 5 August 2016, under my reasons published that day (Permanent Custodians Ltd v Elite Grains Pty Ltd [No 2] [2016] WASC 238), I explained why I had rejected the third defendant's (Mrs Culleton's) application under her chambers summons of 15 June 2015 seeking to set aside the default judgment which was obtained against her (and her husband) on 28 May 2013 by the plaintiff. These reasons deal with the appropriate dispositive orders consequent upon those reasons being published to the parties and the issue of costs.
2 At [67] of the reserved reasons I had said:
In the circumstances then, the present application cannot succeed and must be dismissed. An award of taxed costs should follow that event favouring the plaintiff (respondent) as the successful party upon the application.
3 Upon publication of those reasons, the parties were afforded an opportunity to confer upon final orders giving effect to those reasons, including as to costs. Absent agreement, I directed the successful respondent (plaintiff) should submit a minute of proposed orders by no later than 2 September 2016 and then, that Mrs Culleton would have until 9 September 2016 to respond with an opposing minute. The parties were also advised by email by my associate:
Any written submissions supporting those orders, including as to costs, are to be submitted at the same time. Submissions are not to exceed three pages. Orders will then issue on the papers in due course.
4 Consequent upon that, the respondent (plaintiff) on 2 September 2016 provided my associate with a minute of proposed orders which had been forwarded to the third defendant (applicant) by email on 1 September 2016 with a request that she agree to the proposed orders. There had been no response to that request by the third defendant. The orders sought by the respondent (plaintiff) proposed orders in terms:
1. The third defendant's application by chambers summons dated 15 June 2015, seeking to set aside default judgment dated 28 May 2013, be dismissed.
2. The third defendant pay the plaintiff's costs of the application to be taxed if not agreed.
5 As may be seen, such orders sought by the respondent (plaintiff) accord with observations I had then rendered on a provisional basis at [67] in the reasons, as regards disposition and the issue of costs following the event upon that application - being the usual costs order.
6 On Friday, 9 September 2016 there was filed at court a document from the third defendant entitled 'Minutes of Proposed Order'. It reads in the following terms:
Upon reading the reasons for judgment of Kenneth Martin J,
IT IS ORDERED
1. In light of the public settlements of the ANZ Bank as purported agent to the Rural Program and a number of discussions with the Mortgagee, the Plaintiff, it is clear that doubt exists in relation [sic] the complexity and uncertainty as to who the correct plaintiff should be.
2. Based on the above Statement it is now clear that an external investigation will commence in the below named Tribunal, and the Defendants will be able to meet the Standard of Proof required in General Steel, in matter number 123 in the Parliamentary Joint Committee now referred for further investigation to the below named Tribunal presently sitting.
3. Pending the Results of an Inquiry pending in the Small Business and Family Enterprise Omsbudsman [sic] Tribunal, the matter be stayed and the Court reconstituted after full discovery is had in that Tribunal.
4. Costs be reserved until after that inquiry publishes its finding and the Parties rights if not determined be further considered by the Court.
7 As may be seen, the minute of proposed order submitted on behalf of the third defendant does not engage, or even seek to engage, with the terms of my reasons for decision, delivered 5 August 2016. The third defendant's minute of proposed orders only seeks to invoke arguments upon issues or considerations which were not the subject of argument, let alone evidence, at the hearing of this application, on 1 June 2016. Consequently, the minute of proposed order as was submitted by the third defendant (acting in person) is misconceived and ultimately irrelevant to the present task at hand. No submissions were filed to support the minute of proposed orders.
8 In the circumstances, the appropriate dispositive orders in relation to the failed outcome of this application by the third defendant and in relation to the associated issue of costs, should be in the terms as submitted by the respondent plaintiff. Consequently, orders will now issue upon the publication of these reasons. Orders will issue in those terms under [4] above.
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