R.G. Maxwell and Associates Pty Ltd v Warner, M.M.

[1990] FCA 451

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	)
GENERAL DIVISION	) QLD G1 of 1987

BETWEEN: R.G. MAXWELL & ASSOCIATES PTY LTD

Applicant

AND: MARGARET MARY WARNER

First Respondent

AND: ROBERT THOMAS ADCOCK

Second Respondent

AND: HALLWICK PTY LTD

Third Respondent

AND:  BADETTE PTY LTD and HALLWICK SERVICES PTY LTD

Fourth Respondent

AND: HALL CHADWICK AND CO.

Fifth Respondent

AND: DONALD WILSON LANGDON

Sixth Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

1q 2 8 AUG 1990 FE]

DATE OF ORDER:  21 MAY 1990

AUSTRALIA

WHERE MADE:	BRISBANE	PRINCIPAL
REGISTRY
THE COURT ORDERS THAT:

1.    The application made by notice of motion filed on 18 May 1990 be dismissed.

2.    The applicants in the notice of motion pay the costs of R.G. Maxwell and Associates of the notice of motion to be taxed.

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	) QLD G1 of 1987

BETWEEN: R.G. MAXWELL & ASSOCIATES PTY LTD

Applicant

AND: MARGARET MARY WARNER

First Respondent

AND: ROBERT THOMAS ADCOCK

Second Respondent

AND: HALLWICK PTY LTD

Third Respondent

AND:  BADETTE PTY LTD and HALLWICK SERVICES PTY LTD

Fourth Respondent

AND: HALL CHADWICK AND CO.

Fifth Respondent

AND: DONALD WILSON LANGDON

Sixth Respondent

CORAM :  PINCUS J.

PLACE :	BRISBANE
DATE	:
-	21 MAY 1990

EX TEMPORE REASONS FOR JUDGMENT

This is a motion by some of the respondents against whom judgment was given in suit in this Court on 3 May 1989. Those respondents apply for certain relief, which I will explain shortly. The judgment was given against these

respondents and other respondents in the sum of $36,000, with
costs to be taxed on the basis of a five day hearing.

The applicant, being dissatisfied with the amount of damages awarded, appealed unsuccessfully to the Full Court, that appeal being dismissed on 4 May 1990. Costs were ordered to be paid by the unsuccessful appellant. Thus there are costs owing each way. The respondents owe costs ordered by me in the initial judgment, and the applicant, being unsuccessful on the appeal, has to pay the costs of the appeal. It is plain that the former costs will be in excess of the latter.

The applicant's bill of costs, totalling $81,762.64 has been delivered but has not yet been taxed. However, an interim certificate in the sum of $21,029.09 was delivered on

26 April 1990, and it is common ground that the Registrar may,

on that interim certificate, sign and seal an order for

payment of that sum: the Registrar has not yet done so.

The respondents who apply today say that their estimate of the costs of the appeal, based on what a costs	assessor has said, is $10,000 and therefore it should be
sufficient that they pay the difference between that $10,000 and the amount of the interim certificate. The applicant, on the other hand, says, that the interim certificate should simply be paid. It is, in a sense, slightly premature to determine the point because, as I have mentioned, the
Registrar has not yet ordered the payment of the interim certificate so it is not yet immediately payable.
However, the 14 days mentioned as being a pre-condition of the registrar's power to make that order has elapsed. No doubt it could be made at any time and therefore I will decide the question which the parties want decided now. That question is this: Should the respondents be allowed to set off the amount which they estimate is due in respect of the costs of the appeal, $10,000, against the amount of the interim certificate, $21,029.091

M r Couper, who has argued the case for the

respondents, says that I should allow that set-off on the basis of the principles which equity applies in such cases. Mr Lumb, who appeared for the applicant, says that if there is any relevant right of set-off, which he does not concede, then it would be inequitable to allow the set-off. Mr Lumb says that the costs which are owed to his side are likely to be

which is too low. He says that it would not be fair to allow	such that the set-off, if allowed, would reduce them to a sum
an equitable set-off.
The sum of $81,762.64, which is the amount of the bill delivered, might,seem high to a person unfamiliar with current levels of costs. But, without making any comment as to whether there is likely to be allowed any such sum, it seems to me that the amount of the costs will exceed the
amount of the interim certificate. That is, the probabilities are that a final certificate of taxation in a sum greater than $21,029.09 will be given, and therefore, if the set-off which the respondents claim is allowed, it will produce the results that the applicant is held out of money which it is entitled to.
The matter is before the taxing officer and it is likely, as I understand, that the taxation will take place before too long. It is inappropriate that I attempt to make any prediction as to the ultimate result of the taxation other than that which I have mentioned. The only significance of the figure of $21,029.09 is that that is the sum of the items which have not been disputed. It is in no sense a preliminary estimate by the taxing officer of the likely result of the taxation. I have the advantage of some knowledge of the case which was a complicated and difficult one. The fact that the applicant succeeded in the sum of only $36,000 will no doubt not assist it in the taxation and will have an effect on at
whole of it. quite improbable that the interim certificate will be the least some of the items. But, nevertheless it seems to me In the result, the dispute is a very narrow one. It
is whether or not the sum which is in issue, which is $11,029.09, should be paid to the applicant or paid to the applicant's solicitors on their undertaking to hold it.
Although it is no doubt convenient, in a sense, to do what the respondent suggests, that is to have it held by the solicitors, I do not think it would be fair. That is, I accept the submission of Mr Lumb that if there is, in general, a right of equitable set off in circumstances of this sort, it would not be a proper exercise of discretion to impose an obligation to set-off on the applicant at this stage.
There is material before me which indicates that these respondents are connected with the firm of Hall Chadwick, which is a well known and respected firm of accountants. I accept that it is unlikely that the respondents would fail to pay the sum in question and indeed they are willing to pay it now. The order which I propose to make is in no sense a reflexion upon Hall Chadwick. Nevertheless, it seems to me clear that the result of today's application should be as Mr Lumb suggests. That is, for the reasons I have mentioned, the application made by the notice of motion filed on 18 May 1990 will be dismissed.
It will further be ordered that the applicants in that notice of motion pay the costs of R.G. Maxwell and Associates Pty Ltd of the notice of motion to be taxed. I certify that this and the four preceding pages are a true copy of the reasons for judgment herein of Mr Justice Pincus.