Sell v Taylor

[2019] FCA 572

FEDERAL COURT OF AUSTRALIA

Sell v Taylor [2019] FCA 572

File number(s):

VID 158 of 2019

Judge(s):

O'BRYAN J

Catchwords

COSTS – discontinuance – whether costs order should be made – where defendants would have obtained summary judgment

Date of judgment:

23 April 2019

Legislation:

Corporations Act 2001 (Cth) s 175

Federal Court of Australia Act 1976 (Cth) s 43

Cases cited:

Harvey Norman Holdings Limited v Fels (2002) ATPR 41-852; [2002] FCA 13

Price v Powers [2005] WASC 154

Re Motasea Pty Ltd (2014) 97 ACSR 589; [2014] NSWSC 69

Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2010) 265 ALR 112; [2010] FCAFC 16

Date of hearing:

23 April 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub Area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

19

Counsel for the Plaintiff:

Ms S McColl

Solicitor for the Plaintiff:

Aitken Partners

Counsel for the Defendants:

Mr S Clement

Solicitor for the Defendants:

M + K Lawyers

ORDERS

VID 158 of 2019

BETWEEN:

TIMOTHY EDWARD SELL

Plaintiff

AND:

SCOTT TAYLOR

First Defendant

BOYD KEVIN HOOPER

Second Defendant

KIRK SMITH

Third Defendant

JUDGE:	O'BRYAN J
DATE OF ORDER:	23 APRIL 2019

THE COURT ORDERS THAT:

1.The plaintiff has leave to file a notice of discontinuance of the whole of the proceeding.

2.The plaintiff pay the defendants’ costs of the proceeding.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’BRYAN J:

1. The plaintiff, Timothy Edward Sell, commenced this proceeding by filing an originating process and statement of claim on 22 February 2019.  Mr Sell also filed an interlocutory application seeking summary judgment against the defendants together with an affidavit of Mr Sell.   At that time, Mr Sell was self-represented.

2. On 21 March 2019, the defendants, Messrs Taylor, Hooper and Smith, filed a defence.

3. At the first case management hearing on 22 March 2019, the defendants informed the Court that they proposed to file an application for summary judgment in favour of the defendants on the basis that Mr Sell was not a proper plaintiff to the claims sought to be made in the statement of claim.  At that case management hearing, I encouraged Mr Sell to seek legal advice about the proceeding and orders were made for the hearing of the opposing summary judgment applications today.

4. On 9 April 2019, the defendants filed the foreshadowed application for summary judgment and a supporting affidavit of Robert Glavas.  On 18 April 2019, the defendants filed an outline of submissions in support of the summary judgment application.

5. Also on 18 April 2019, a Notice of Acting was filed on behalf of Mr Sell, giving notice that Mr Sell had appointed Sandra McColl of Aitken Partners to represent him in the proceeding.

6. At the hearing on 23 April 2019, Mr Sell was represented by Ms McColl and the defendants were represented by Mr Clement of Counsel.  Ms McColl informed the Court that…