Shaw v MAB Corporation Pty Ltd (No 2)

[2014] FCA 88

FEDERAL COURT OF AUSTRALIA

Shaw v MAB Corporation Pty Ltd (No 2) [2014] FCA 88

Citation:	Shaw v MAB Corporation Pty Ltd (No 2) [2014] FCA 88
Parties:	JOHN RASHLEIGH SHAW v MAB CORPORATION PTY LTD (ACN 065 207 230), MAB DOCKLANDS PTY LTD (ACN 078 029 633), YARRANOVA PTY LTD (ACN 077 517 616), NEWQUAY STAGE 2 PTY LTD (ACN 086 482 644), ARNOLD BLOCH LEIBLER (ABN 062 7868T), ABL FIDUCIARY CORP PTY LTD (ACN 005 524 952), ABL & CO CUSTODIANS PTY LTD (ACN 017 586 898), ANTHONY CALVI, IAN MICHAEL SMITH and ALEXANDER WILLIAM KING
File number:	VID 796 of 2013
Judge:	JESSUP J
Date of judgment:	17 February 2014
Catchwords:	PRACTICE AND PROCEDURE – Costs – Proceeding held to constitute abuse of process – Whether basis for award of indemnity costs.
Legislation:	Federal Court Rules 2011 (Cth) r 40.02(a)
Cases cited:	Shaw v MAB Corporation Pty Ltd [2013] FCA 1231
Date of hearing:	Heard on the papers
Date of last submissions:	6 December 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Applicant:	The applicant did not provide submissions in relation to costs.
Counsel for the Respondents:	B Jellis
Solicitor for the Respondents:	Arnold Bloch Leibler

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 796 of 2013

BETWEEN:

JOHN RASHLEIGH SHAW
Applicant

AND:

MAB CORPORATION PTY LTD (ACN 065 207 230)
First Respondent

MAB DOCKLANDS PTY LTD (ACN 078 029 633)
Second Respondent

YARRANOVA PTY LTD (ACN 077 517 616)
Third Respondent

NEWQUAY STAGE 2 PTY LTD (ACN 086 482 644)
Fourth Respondent

ARNOLD BLOCH LEIBLER (ABN 062 7868T)
Fifth Respondent

ABL FIDUCIARY CORP PTY LTD (ACN 005 524 952)
Sixth Respondent

ABL & CO CUSTODIANS PTY LTD (ACN 017 586 898)
Seventh Respondent

ANTHONY CALVI
Eighth Respondent

IAN MICHAEL SMITH
Ninth Respondent

ALEXANDER WILLIAM KING
Tenth Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	17 FEBRUARY 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant pay the respondents’ costs of the proceeding, such costs, if not otherwise agreed, to be assessed on an indemnity basis.   

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 796 of 2013

BETWEEN:

JOHN RASHLEIGH SHAW
Applicant

AND:

MAB CORPORATION PTY LTD (ACN 065 207 230)
First Respondent

MAB DOCKLANDS PTY LTD (ACN 078 029 633)
Second Respondent

YARRANOVA PTY LTD (ACN 077 517 616)
Third Respondent

NEWQUAY STAGE 2 PTY LTD (ACN 086 482 644)
Fourth Respondent

ARNOLD BLOCH LEIBLER (ABN 062 7868T)
Fifth Respondent

ABL FIDUCIARY CORP PTY LTD (ACN 005 524 952)
Sixth Respondent

ABL & CO CUSTODIANS PTY LTD (ACN 017 586 898)
Seventh Respondent

ANTHONY CALVI
Eighth Respondent

IAN MICHAEL SMITH
Ninth Respondent

ALEXANDER WILLIAM KING
Tenth Respondent

JUDGE:	JESSUP J
DATE:	17 FEBRUARY 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 22 November 2013, I ordered that there be judgment for the respondents in this proceeding, and laid out a timetable for the filing and service of written submissions as to costs: Shaw v MAB Corporation Pty Ltd [2013] FCA 1231. Submissions were received from the respondents conformably with that timetable, but not from the applicant. These reasons are concerned with the respondents’ application for costs.

2. As the successful parties on their application for summary judgment, the respondents would be conventionally entitled to their costs.  I see no reason to depart from the usual course. 

3. Additionally, the respondents have applied to have their costs taxed on an indemnity basis, pursuant to r 40.02(a) of the Federal Court Rules 2011 (Cth).  In my reasons of 22 November 2013, I held that the applicant’s proceeding was an abuse of process.  More importantly in the present context, I went further than to uphold the respondents’ submission that, in a number of respects, the abuse was constituted by the attempt to re-litigate issues which might reasonably have been made the subject of an earlier proceeding.  At the general level, I held that the prosecution of the proceeding would bring the administration of justice into disrepute, and that the proceeding was being used as an instrument of oppression against the two respondents most centrally involved in the proceedings in the Supreme Court of Victoria. 

4. In my view, the circumstances amply justify the assessment of costs on an indemnity basis.  There was no response from the applicant to the respondents’ submissions in favour of such an outcome, and, for my own part, I am unable readily to perceive any legitimate response that might be made. 

5. There will be an order for the assessment of the respondents’ costs on an indemnity basis. 

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

Associate:

Dated:        17 February 2014