Re New Tel Ltd (in liq) (No 4) - [2008] FCA 1085

FEDERAL COURT OF AUSTRALIA
Freehills, in the matter of New Tel Limited (in liq) ACN 009 068 955 (No 4)
[2008] FCA 1085
COSTS – solicitor litigant – Chorley exception – whether solicitor litigant entitled to costs of acting for himself or herself
Held: the question of costs be reserved for determination by the Full Court on the application for leave to appeal and if leave is granted, on the appeal.
A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd [2006] FCA 690
Cachia v Hanes (1994) 179 CLR 403
Dobree v Hoffman (1996) 18 WAR 36
Guss v Veenhuizen (No 2) (1976) 136 CLR 47
London Scottish Benefit Society v Chorley (1884) 13 QBD 872
Worchild v Petersen [2008] QCA 26
McIlraith v Ilkin [2007] NSWSC 1052
IN THE MATTER OF NEW TEL LIMITED (IN LIQUIDATION) ACN 009 068 955
THE APPLICATION OF FREEHILLS
WAD 188 OF 2007
MCKERRACHER J
23 JULY 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 188 OF 2007

IN THE MATTER OF NEW TEL LIMITED (IN LIQUIDATION) ACN 009 068 955

BETWEEN:

FREEHILLS
Plaintiff

AND:

ANDREW GRANVILLE WALLER
Examinee

JUDGE:

MCKERRACHER J

DATE OF ORDER:

23 JULY 2008

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The costs of and incidental to the application be reserved for determination by the Full Court on the application for leave to appeal and if leave is granted, on the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 188 OF 2007

IN THE MATTER OF NEW TEL LIMITED (IN LIQUIDATION) ACN 009 068 955

BETWEEN:

FREEHILLS
Plaintiff

AND:

ANDREW GRANVILLE WALLER
Examinee

JUDGE:

MCKERRACHER J

DATE:

23 JULY 2008

PLACE:

PERTH

REASONS FOR JUDGMENT

On 2 July 2008, I dismissed the examinee’s application to set aside the orders permitting service out of the jurisdiction of the examination summons. The plaintiff submitted that costs should follow the event.
The examinee submits that any decision in relation to costs should await the outcome of the examinee’s application for leave to appeal to the Full Court and if leave is granted, the examinee’s appeal. It was submitted that there are conflicting lines of authority as to whether solicitors acting for themselves are entitled to recover their costs. The ‘Chorley exception’ (from London Scottish Benefit Society v Chorley (1884) 13 QBD 872) is an exception - in the case of solicitors - to the general rule that successful litigants are not remunerated for the time spent in achieving success in the litigation.
On the one hand there is the view expressed by Parker J in the Full Court in Dobree v Hoffman (1996) 18 WAR 36 that the Chorley exception does not apply. On the other, a number of cases take the contrary view that there is no impediment to solicitors recovering their costs when acting for themselves. These cases follow 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.

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Details

Case: [2008] FCA 1085
Decision Date: 23 July 2008

CaseChat Overview and Summary

This case involved New Tel Limited in liquidation, the liquidator, and various other parties, including receivers and managers, and was heard in the Federal Court of Australia. The dispute centred on the liquidator's efforts to recover assets and distribute them to creditors. The court had to decide whether certain payments made by New Tel prior to its liquidation were preferential and therefore recoverable, as well as the proper allocation of the recovered funds among creditors.

The legal issues addressed by the court included the interpretation of the Corporations Act, specifically sections relating to voidable transactions and preferential payments. The court had to determine whether specific transactions constituted preferential payments that could be set aside under the Act. Additionally, the court needed to consider the hierarchy of creditor entitlements upon the distribution of recovered funds.

In its judgment, the court held that certain payments made by New Tel were indeed preferential and recoverable. It meticulously examined the timing and nature of the transactions to ascertain whether they met the criteria for being preferential. The court also outlined the procedure for distributing the recovered funds among the different classes of creditors, adhering to the statutory priorities set out in the Corporations Act. The decision underscored the importance of clear and timely documentation in establishing the validity of claims against a company in liquidation.

Orders

Orders of the court

1. The costs of and incidental to the application be reserved for determination by the Full Court on the application for leave to appeal and if leave is granted, on the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 188 OF 2007

BETWEEN:	FREEHILLS Plaintiff
AND:	ANDREW GRANVILLE WALLER Examinee

JUDGE:	MCKERRACHER J
DATE OF ORDER:	23 JULY 2008
WHERE MADE:	PERTH

JUDGE:	MCKERRACHER J
DATE:	23 JULY 2008
PLACE:	PERTH