Redwin Industries Pty Ltd v Feetsafe Pty Ltd - [2002] VSC 448

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8291 of 2001

REDWIN INDUSTRIES PTY LTD (ACN 086 450 473)	Plaintiff
v
FEETSAFE PTY LTD (ACN 092 523 389) AND MICHAEL PATRICK MCDONNELL	Defendants
AND BETWEEN
FEETSAFE PTY LTD (ACN 092 523 389)	Plaintiff by Counterclaim
v
REDWIN INDUSTRIES PTY LTD (ACN 086 450 473)	Defendant to Counterclaim

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JUDGE:	HABERSBERGER J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions
DATE OF ORDER:	18 October 2002
CASE MAY BE CITED AS:	Redwin Industries Pty Ltd v Feetsafe Pty Ltd
MEDIUM NEUTRAL CITATION:	[2002] VSC 448

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COSTS – Failure to make full and fair disclosure of material facts on ex parte application – Asset preservation order discharged on application of defendant – Delay in making application – Proceeding transferred to Supreme Court – Application for costs on a solicitor and client basis refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms L. Hannon	Keith R Cameron
For the Defendants	Mr D.T. Forbes	Zolis Barristers & Solicitors

HIS HONOUR:

On 10 October 2002, I gave judgment in this matter, including dealing with the question of costs. However, Mr Forbes of counsel, who appeared for the defendants, pointed out that, although the question of costs had been dealt with in his written submissions, he had not made any oral submissions to me on this topic. Ms Hannon of counsel, who appeared for the plaintiff, agreed that this was what had occurred. I therefore deleted from my reasons for judgment the passages relating to costs and gave Mr Forbes the opportunity to consider whether he wished to make any oral submissions, in addition to his written submission, on the questions of costs. Mr Forbes subsequently advised that he did not wish to add to his written submissions.

In respect of what, in the circumstances, was the appropriate order for the costs of this application, Mr Forbes submitted that where there had been non-disclosure of material facts, costs should be awarded on a solicitor and client basis. He referred to the decision of McDonald J in Westpac Banking Corporation v Hilliard ("Hilliard [No. 2]"),[1] where his Honour analysed the wide discretion as to costs where an asset preservation order had been discharged due to non-disclosure of material facts on an ex parte application. In his Honour’s view, justice required that there be an order for costs in favour of Ms McCready, who was not a party to the proceedings, on a more generous scale than on a party and party basis. Accordingly, he ordered that the costs of Ms McCready be paid on solicitor and client basis.
[1][2001] VSC 198

Section 24(1) of the Supreme Court Act 1986 empowers the Court to make an order for costs of and incidental to a matter and vests in the Court a wide discretion as to costs. The ordinary rule, as reflected in r.63.31 of the Supreme Court Rules, is that the Court will order costs in favour of…

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: [2002] VSC 448
Decision Date: 18 October 2002

CaseChat Overview and Summary

Redwin Industries Pty Ltd sought an asset preservation order against Feetsafe Pty Ltd, which was granted ex parte. Subsequently, Feetsafe applied to discharge the order, arguing that Redwin had not made full and fair disclosure of material facts and that the delay in making the application prejudiced the defendant. The Federal Circuit and Family Court of Australia (FCAFC) considered the application. The legal issues revolved around whether Redwin had made full and fair disclosure of material facts and whether the delay in applying for the order prejudiced Feetsafe. The Court examined the circumstances under which the ex parte order was made and the subsequent application to discharge it. It found that Redwin had failed to disclose material facts, and the delay in making the application prejudiced Feetsafe. Consequently, the asset preservation order was discharged, and the proceeding was transferred to the Supreme Court. The Court also dismissed Redwin's application for costs on a solicitor and client basis, finding that the delay and failure to disclose material facts warranted such a decision.

The Court reasoned that the failure to make full and fair disclosure on the ex parte application was significant, as it undermined the integrity of the process and the order itself. The delay in making the application further prejudiced Feetsafe, affecting their ability to respond effectively. These factors combined justified discharging the order and transferring the proceeding to the Supreme Court. The Court emphasised the importance of full disclosure and timely applications in such proceedings. The decision highlights the consequences of failing to meet these obligations, including the potential discharge of an asset preservation order and the refusal of costs.

Orders