Rogers v Asset Loan Co Pty Ltd (No2)

[2008] FCA 1277

FEDERAL COURT OF AUSTRALIA

Rogers v Asset Loan Co Pty Ltd (No2) [2008] FCA 1277

Australian Securities and Investment Commission Act 2001 (Cth)
Federal Court Rules

GREGORY ERIC ROGERS v ASSET LOAN CO PTY LTD ACN 107 746 798, ASSET LOAN COMPANY PTY LTD ACN 101 054 997, PAUL ALEXANDER SYDNEY HARE, RUSSELL FRANK PERCIVAL, JUDITH LORRAINE HARE, RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2, SEAN WHITTLE, ROBERT EDWARD BORBIDGE and JENNY PURCELL

QUD362 OF 2007

LOGAN J
29 AUGUST 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD362 OF 2007

BETWEEN:

GREGORY ERIC ROGERS
Applicant

AND:

ASSET LOAN CO PTY LTD ACN 107 746 798
First Respondent

ASSET LOAN COMPANY PTY LTD ACN 101 054 997
Second Respondent

PAUL ALEXANDER SYDNEY HARE
Third Respondent

RUSSELL FRANK PERCIVAL
Fourth Respondent

JUDITH LORRAINE HARE
Fifth Respondent

RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2
Sixth Respondent

SEAN WHITTLE
Seventh Respondent

ROBERT EDWARD BORBIDGE
Eighth Respondent

JENNY PURCELL
Ninth Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	29 AUGUST 2008
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The Respondents are to pay the Applicant’s costs of and incidental to the hearing on 19 December 2007 to be taxed.

2.Save as aforesaid the Applicant is to pay the Respondents’ costs of and incidental to the application including reserve costs to be taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD362 OF 2007

BETWEEN:

GREGORY ERIC ROGERS
Applicant

AND:

ASSET LOAN CO PTY LTD ACN 107 746 798
First Respondent

ASSET LOAN COMPANY PTY LTD ACN 101 054 997
Second Respondent

PAUL ALEXANDER SYDNEY HARE
Third Respondent

RUSSELL FRANK PERCIVAL
Fourth Respondent

JUDITH LORRAINE HARE
Fifth Respondent

RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2
Sixth Respondent

SEAN WHITTLE
Seventh Respondent

ROBERT EDWARD BORBIDGE
Eighth Respondent

JENNY PURCELL
Ninth Respondent

JUDGE:	LOGAN J
DATE:	29 AUGUST 2008
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. I gave judgment in this matter on 21 August 2008.  Mr Rogers, who does not live in Brisbane, was then not able to be present.  It seemed to me that the interests of justice required that he be afforded an opportunity to respond to submissions on behalf of the Respondents on the subject of costs.  Accordingly, I made directions for the filing and exchange of submissions in respect of costs. 

2. I have considered the submissions consequently filed by both Mr Rogers and the Respondents.  The Respondents have developed an argument to the effect that they ought to have the benefit of a costs order in their favour in respect of each of the court appearances when substantive argument was heard, eventhough the Respondents have not succeeded in relation to the seeking of relief under O 21 of the Federal Court Rules.  The Respondents submit that the amendments made to the notice of motion in relation to the seeking of relief under that order did not unduly or unreasonably delay or add to the matters required to be considered.  They also highlight the observations that I made as to what seemed to me to be the gratuitous joinder of the Seventh, Eighth and Ninth Respondents and an endeavour by the joinder of the Seventh Respondent to circumvent interlocutory injunctions granted in the Supreme Court. 

3. For his part, Mr Rogers highlights that the Respondents did not enjoy success under O 21 and that the filing of the application was a genuine attempt on his part to seek to obtain relief in respect of the Respondents’ alleged conduct in a way not foreclosed to him either by his bankruptcy or by the outcomes of the earlier litigation. 

4. I can see in earlier judgments of this Court how Mr Rogers came to a view that it was possible for him to maintain a damages claim in respect of alleged damages for personal injury loss and damage arising from alleged breaches of the Australian Securities and Investment Commission Act 2001 (Cth).  Further, there is force in his submission that the Respondents did not enjoy complete success forensically. 

5. Mr Rogers submits that there should be no order as to costs.  I disagree.  However, having regard to such success as Mr Rogers did enjoy, I do not believe that he ought to be visited with all of the Respondents’ costs.  In particular, it seems to me that the costs of and incidental to the hearing on 19 December 2007 were overwhelming referable to the issue upon which the Respondents did not succeed, ie the securing of relief under O 21 of the Federal Court Rules.  Having regard to the relative success of the parties, it seems to me that the appropriate orders to make in the respect of costs are:

   1.The Respondents are to pay the Applicant’s costs of and incidental to the hearing on 19 December 2007 to be taxed.

   2.Save as aforesaid the Applicant is to pay the Respondents’ costs of and incidental to the application including reserve costs to be taxed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:       29 August 2008

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondents:	Mr GJ Handran
Solicitor for the Respondents:	Whittle Lawyers

Date of Hearing:	21 August 2008
Date of Final Written Submissions:	27 August 2008
Date of Judgment:	29 August 2008