Rafferty v Time 2000 West Pty Ltd (No 8)
[2011] FCA 1444
•7 November 2011
FEDERAL COURT OF AUSTRALIA
Rafferty v Time 2000 West Pty Ltd (No 8) [2011] FCA 1444
Citation: Rafferty v Time 2000 West Pty Ltd (No 8)
[2011] FCA 1444Parties: PATRICK CAMPBELL RAFFERTY, SANTORA HOLDINGS PTY LIMITED ACN 128 467 550 and KARAVILLE HOLDINGS PTY LIMITED ACN 009 439 178 v TIME 2000 WEST PTY LIMITED ACN 127 893 270, TIME 2000 SYSTEMS (AUSTRALIA) PTY LIMITED ACN 127 853 614, TIME 2000 OPERATIONS (AUSTRALIA) PTY LIMITED ACN 128 700 541, EMBLETON LIMITED (A COMPANY INCORPORATED IN HONG KONG), STEPHEN GERARD DONOVAN and MADGWICKS File number: SAD 122 of 2008 Judge: LANDER J Date of judgment: 7 November 2011 Date of hearing: 7 November 2011 Place: Adelaide Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 14 Counsel for the Applicants: Mr A Rosser Solicitor for the Applicants: Cosoff Cudmore Knox Counsel for the Gemhall Holdings Pty Ltd: Mr A Lazarevich Solicitor for the Gemhall Holdings Pty Ltd: Pace Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 122 of 2008
BETWEEN: PATRICK CAMPBELL RAFFERTY
First ApplicantSANTORA HOLDINGS PTY LIMITED ACN 128 467 550
Second ApplicantKARAVILLE HOLDINGS PTY LIMITED ACN 009 439 178
Third ApplicantAND: TIME 2000 WEST PTY LIMITED ACN 127 893 270
First RespondentTIME 2000 SYSTEMS (AUSTRALIA) PTY LIMITED
ACN 127 853 614
Second RespondentTIME 2000 OPERATIONS (AUSTRALIA) PTY LIMITED ACN 128 700 541
Third RespondentEMBLETON LIMITED (A COMPANY INCORPORATED IN HONG KONG)
Fourth RespondentSTEPHEN GERARD DONOVAN
Fifth RespondentMADGWICKS
Sixth Respondent
JUDGE:
LANDER J
DATE OF ORDER:
7 NOVEMBER 2011
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.Paragraph 1(b)(i) of the orders made on 3 November 2011 be amended to include after the words “The Stephen Donovan Family Trust” the words “of which the only signatory is Frenkel Partners”.
2.Paragraph 1(b)(iii) be amended to read as follows:
(iii)not to pay out the said sum or any part of it until the Court gives its permission to deal with the said sum or the applicants, by notice in writing, so consent, or in the event that Mr Donovan is declared bankrupt and his trustee in bankruptcy provides a written consent to release the funds to The Stephen Donovan Family Trust after first having given seven days notice in writing to the applicants of the trustee’s intention so to do.
3.The applicants’ solicitors pay Gemhall Holdings Pty Ltd’s costs of the application to vary the orders made on 3 November 2011 on a party and party basis.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 122 of 2008
BETWEEN: PATRICK CAMPBELL RAFFERTY
First ApplicantSANTORA HOLDINGS PTY LIMITED ACN 128 467 550
Second ApplicantKARAVILLE HOLDINGS PTY LIMITED ACN 009 439 178
Third ApplicantAND: TIME 2000 WEST PTY LIMITED ACN 127 893 270
First RespondentTIME 2000 SYSTEMS (AUSTRALIA) PTY LIMITED
ACN 127 853 614
Second RespondentTIME 2000 OPERATIONS (AUSTRALIA) PTY LIMITED ACN 128 700 541
Third RespondentEMBLETON LIMITED (A COMPANY INCORPORATED IN HONG KONG)
Fourth RespondentSTEPHEN GERARD DONOVAN
Fifth RespondentMADGWICKS
Sixth Respondent
JUDGE:
LANDER J
DATE:
7 NOVEMBER 2011
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
On 3 November 2011 I entered orders by consent in circumstances where the applicants and Gemhall Holdings Pty Ltd (Gemhall) both sought orders – the applicants sought injunctions, while Gemhall sought orders discharging existing injunctions. When the matter was called on at 8.30am, the applicants were represented by very experienced senior counsel, and Gemhall was represented by junior counsel.
I was informed immediately that the parties had agreed the orders which were to be entered. I was directed to Gemhall’s application by senior counsel for the applicants who advised me of the alterations to Gemhall’s proposed orders to which the parties had agreed. Those alterations were dictated to me, and I made orders in accordance with the proposed orders agreed between the parties.
The next day the applicants’ solicitors wrote to Gemhall’s solicitors seeking to have the orders varied in a number of respects, and requiring Gemhall’s solicitors to respond on Friday. Gemhall’s solicitors did not respond in time, and on Friday the applicants’ solicitors approached my Chambers to have the matter listed on either Friday or Monday to consider the proposed variations to the orders of 3 November in time to allow a settlement to take place tomorrow, 8 November 2011. Through my Associate I asked the applicants’ solicitors to advise why it was that the applicants were seeking to have consent orders varied only 24 hours after those orders had been made.
The matter was called on this morning, when the applicants were represented by junior counsel, who put to me that the orders ought to be varied in the manner set out in the correspondence between the applicants’ solicitors and Gemhall’s solicitors. After some argument, the orders were varied slightly, but not wholly in accordance with the applicants’ proposals.
After the hearing had finished I asked counsel who should pay the costs of the application. Junior counsel for the applicants suggested that costs ought to be reserved. Gemhall’s counsel asked for an order for costs in favour of Gemhall on an indemnity basis, but made no submission as to who ought to be ordered to pay those costs.
I raised with the applicants’ counsel at that time why I should not make an order that the applicants’ solicitors pay the costs of the application. He said that he wished to get instructions in relation to that, and the matter was listed again this afternoon, when he argued again that the order ought to be that costs be reserved.
The matter, he said, was a matter of substantial importance between the parties, the parties had little time to consider each other’s position, and as a result of that the applicant agreed to orders that on reflection ought not to have been made because the undertaking which was part of the order was ambiguous. He argued that it was in the Court’s interests that the undertaking be clear. He argued in the alternative that if an order for costs were to be made, it ought not be made on an indemnity basis. This was not a case, he said, for indemnity costs, and if an order for costs was to be made it should be made on a party and party basis. But he did not resile from his first submission that costs should be reserved. As to against whom the order for costs ought to be made, in the end he made no submission.
In my opinion the question of costs ought to be resolved at this stage of the proceeding, and there is no reason why costs should be reserved. Part VB of the Federal Court of Australia Act 1976 (Cth) provides for case management and civil procedures, and s 37M sets out the overarching purpose of civil practice and procedure in this Court, which is to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.
This Court reacted to the parties’ application to have the matter listed as a matter of urgency so that the parties could allow Gemhall to settle on the sale of its one significant asset on 8 November 2011. The parties were in a state of disagreement as to how the funds from the settlement ought to be disbursed or held, and this Court sat for the purpose of resolving that dispute. As it happened, the parties resolved the dispute between them, which was entirely appropriate. The applicants were represented by experienced senior counsel, and had the best advice available to them.
It was put to me that the matter came on so quickly that the applicants did not have sufficient time to consider their position, but in my opinion that proposition ought to be rejected. In my opinion it is evident from the correspondence which has emanated from the applicants’ solicitors since Friday after the consent orders were entered that the applicants are seeking to have the respondent further tied as to the use to which Gemhall’s assets can be put.
It seems to me the applicants are very keen to ensure that there is not the slightest possibility that the $1.7 million, which is to be placed in a separate account and not to be used pending the determination of the appeal in this proceeding, should be threatened. I think, with the greatest respect to the applicants’ solicitor, that they have proceeded on a counsel of perfection, and this application ought not to have been made, because the orders made last Thursday properly protected their clients. But that said, they have made the application, and Gemhall has been put to the cost of appearing today. Accordingly, Gemhall ought to have its costs.
The next question is whether or not the costs ought to be on a party and party basis or an indemnity basis. When I first considered this matter I thought the costs ought to be on an indemnity basis because the respondent should be completely covered in relation to the costs that have been occasioned by the application to vary an order made only last Thursday. However, there have been a couple of minor changes made to the orders, which may make the orders more clear, although I think only marginally so, but the changes are enough for me to reach the conclusion that the costs ought to be on a party and party basis.
The last question is who should pay the costs. There is nothing before me that suggests that the applicants themselves should pay the costs. There is not a scintilla of evidence to suggest that they gave specific instructions in relation to the orders made last Thursday, and the correspondence sent since that time. It seems to me that the application, if it has been necessary (and I doubt it), has been necessitated by the applicants’ advisers not applying their minds before the orders were made last Thursday.
In those circumstances there will be an order that the applicants’ solicitors pay Gemhall’s costs on a party and party basis.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 14 December 2011
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