Shaw v Yarranova Pty Ltd (No. 2) - [2010] VSC 125

IN THE SUPREME COURT OF VICTORIA

Unrestricted

AT MELBOURNE
PRACTICE COURT

No S CI 2003 09046

JOHN RASHLEIGH SHAW	Plaintiff/Respondent
v
YARRANOVA PTY LTD (ACN 077 517 616) and NEWQUAY STAGE 2 PTY LTD (ACN 086 482 644)	Defendants/Applicants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	WRITTEN COSTS SUBMISSIONS FILED ON 8, 9 & 11 DECEMBER 2009
DATE OF COSTS JUDGMENT:	15 APRIL 2010
CASE MAY BE CITED AS:	SHAW v YARRANOVA PTY LTD & ANOR (No. 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 125

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Costs –Application for freezing order – Application based upon respondent’s failure to pay judgment debts compounded by his breach of an undertaking – No justification for failure to pay judgment debts – Application by successful applicants for their costs on an indemnity basis – Application granted.

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HIS HONOUR:

On 21 October 2009, I gave judgment for the applicants, who by a summons filed on 29 September 2009 sought freezing orders against the respondent. At the same time, I also dismissed the respondent’s summons of 7 October in which he sought (i) the lifting of a stay, granted by Judd J and affirmed on appeal, of a judgment of Daly AsJ (in which her Honour made an assessment of damages to be paid by the respondent); (ii) the amendment under the “slip” rule of an order made by Judd J; and (iii) leave to appeal orders made by Wood AsJ at various times but most recently in February 2008. Finally, I granted the relief sought by the applicants in a summons filed on 14 October 2009 by which they sought to set aside three subpoenas filed on 9 October last year.

The applicants’ success in obtaining the relief they sought in the case of each summons issued by them, and in defending the respondent’s summons of 7 October, is now the foundation of an application by them for the payment by the respondent on an indemnity basis of their costs of and incidental to each such summons. It is an application resisted by the respondent, who submits that I should make no costs orders at all.

The principal application before me was that for the freezing order sought by the summons of 29 September. It was originally returnable before Vickery J in the Practice Court on 30 September 2009. His Honour granted an interim order, and otherwise adjourned the 29 September summons to the Judge sitting in the Practice Court on Friday 16 October. I was that Judge. However, the business of the Court did not allow me to fully hear the application on that day, and it was accordingly adjourned to Monday 19 October. Again, the Court’s business did not allow completion of all the matters raised by the combination of applications; and, indeed, it was not until Wednesday 21 October that the hearing was complete and I was in a position to give judgment.

In my opinion, which I expressed in my judgment, the respondent’s position was, on every issue…

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: [2010] VSC 125
Decision Date: 15 APRIL 2010

CaseChat Overview and Summary

The case before the court involved a dispute between Shaw and Yarranova Pty Ltd. The issue at hand was whether the court should grant an application for a freezing order based on the respondent's failure to pay judgment debts and their breach of an undertaking. Shaw, the successful applicant, sought their costs on an indemnity basis. The court was tasked with determining whether the application for a freezing order was justified and whether the applicants were entitled to their costs.

The legal issues before the court included whether the respondent's failure to pay the judgment debts and breach of an undertaking provided sufficient grounds for the grant of a freezing order. Additionally, the court had to consider whether the applicants were entitled to their costs on an indemnity basis, given the respondent's actions. The court examined the respondent's justification for not paying the judgment debts and the circumstances surrounding the breach of the undertaking to make its decision.

The court found that the respondent's failure to pay the judgment debts and their breach of an undertaking were not justified. As a result, the court granted the applicants' application for a freezing order. Furthermore, the court ruled that the applicants were entitled to their costs on an indemnity basis due to the respondent's actions. The court's decision was based on the respondent's lack of justification for their failure to pay the judgment debts and their breach of the undertaking.

The court ordered that the respondent, Yarranova Pty Ltd, pay the applicants' costs on an indemnity basis. Additionally, the freezing order was granted, preventing the respondent from disposing of their assets to avoid satisfying the judgment debts. This decision underscores the importance of adhering to court orders and fulfilling financial obligations in legal disputes.

Orders