Starkey v Singh

[1998] QSC 40

IN THE SUPREME COURT

OF QUEENSLAND

O.A. No. 11313 of 1997

Before Mr Justice Mackenzie

[Starkey v Singh]

BETWEEN:

PETER JOHN STARKEY

Plaintiff

AND:

RAGHBIR SINGH, NIRMAL SINGH SANDHU AND MUKHTIAR SINGH

Defendants

REASONS FOR JUDGMENT - MACKENZIE J.

Judgment delivered 27 March 1998

CATCHWORDS:     COSTS - ASSOCIATIONS - association’s records requested by administrator - proceedings to obtain records - responsibility for costs.

Counsel:T.  Somers for applicant

A.N. Skoien for respondents

Solicitors:Sciacca’s for applicant

Paul Carter & Associates for respondents        

Hearing Date :  20 January 1998

REASONS FOR JUDGMENT - MACKENZIE J.

Judgment delivered 27 March 1998

On 8 August 1997 Mr Starkey was appointed as administrator of the Brisbane Sikh Temple (Gurdwara) Inc., an incorporated association. On 15 December 1997 a Writ and Notice of Motion returnable on 7 January 1998 were filed for the purpose of obtaining the books and account and membership records of the Association, naming Raghbir Singh, Nirmal Singh Sandhu and Mukhtiar Singh as defendants. Nirmal Sing Sandhu was overseas at that time. The other two defendants gave affidavits in the proceedings.

This application concerns costs which is a complex issue for reasons which will appear.  Mr Starkey’s first affidavit in support of the Notice of Motion deposed that since the date of his appointment he had endeavoured to obtain the records of the Association to enable him to administer its financial affairs. As early as 15 August 1997, an allegation was made in correspondence to the solicitors presently representing the defendants from the solicitors for members of the Temple with opposing interests to the defendants that the books were not in the latter’s possession. On 29 August 1997, the defendants’ solicitor wrote saying that he acted on behalf of the present defendants and stating:-

“Our client is ready willing and able to hand over books of account but despite a request ... we have not received full particulars of documents you require.” 

The letter also alleged that the Administrator had not paid bills on request and said that if he did not resign action would be begun to remove him. On 28 October 1997, Mr Starkey’s solicitor complained that the administration was being frustrated by the refusal to hand over the books and made a demand that the “clients” deliver records within seven days. This was plainly directed at multiple individuals and can only be sensibly related to those who had previously been described as the solicitor’s clients. On 11 November 1997, the defendants’ solicitor wrote saying that its “client” had co-operated and had handed over cheque books. The “client” had taken advice (not from the solicitor, and misconceived), that the records for the Temple prior to the date of the Administration Order need not be handed over.

It emerged in evidence that the “client” was  not one of the three defendants but Mr Paramjit Singh and that the letter was not concerned with the present three defendants. Nothing in evidence suggested that Mr Starkey should have perceived that the solicitor was speaking of an entirely different person and he deposed that he had taken the letter to be referring to the clients in respect of whom he had had the previous correspondence. On 13 November 1997, Mr Starkey’s solicitor wrote disagreeing with the advice about the obligation to hand the books over and foreshadowed the present application. 

The Notice of Motion was filed on 15 December 1997 and on 6 January 1998, affidavits by Mr Raghbir Singh and Mr Mukhtiar Singh were filed. The former who was elected President of the Association on 31 May 1997, deposed that he had not received and did not have in his power, possession or control any books of account or membership registers of the Association. Mr Mukhtiar Singh who was elected Treasurer the same day, deposed that he had received a cheque book, a receipt book, a day book and a deposit book and that he had handed all those books to the Administrator. In evidence it turned out that he had in fact handed them to Mr Paramjit Singh. 

On the return date the Notice of Motion was adjourned to 19 January 1998 to allow the defendants to obtain a further affidavit (from the solicitor) which was filed on 9 January 1998.  On 8 January 1998, Mr Starkey’s solicitor had written suggesting that there was no purpose in pursuing his application if the defendants had no documents in their power and control but requesting disclosure of the documents’ whereabouts. He said that information received from the other faction’s solicitors suggested that the documents may be in the possession of Mr Paramjit Singh or some other person known to the defendants. The letter also suggested that the issue of costs be conceded. A reply on 8 January 1998 rejected the notion that the defendants would be liable for costs and said that the writer understood that the documents were in the possession of Mr Paramjit Singh who had been assisting the Administrator. This notion arises from a mechanism put in place by Mr Starkey to save costs, whereby a member of each of the opposing factions was responsible for collecting and banking moneys received by the association and bringing accounts for payment to him.  The “assistance” was no more than this.

Some documents had been in the possession of the police from 16 January 1997 until mid-November 1997 in connection with a police investigation. It was alleged that the Administrator knew that. An attempt was made to criticise the Administrator for not following this up with the police.  However, there is evidence that Mr Paramjit Singh had a photocopy of relevant documents which he did not disclose to the Administrator. Mr Paramjit Singh also filed an affidavit in which he claimed he had co-operated and told the Administrator of the documentation relating to the Association. However, where there is a conflict as to what was said, I am inclined to the view that I should act on Mr Starkey’s recollection. 

The answers under cross-examination showed that Mr Paramjit Singh was resistant to the notion that Mr Starkey was entitled to the documentation which he admitted possessing. He seemed to think that it was not necessary for Mr Starkey to have access to all of the documents. One possible explanation of this is that Mr Paramjit Singh is acting under a misconception as to the extent of the Administrator’s functions. Another was that he was not prepared to co-operate because of the allegation of bias. The evidence showed that there were vastly more records in his possession than he was originally prepared to admit. It was not disputed on behalf of the defendants that the Administrator was at least entitled to see if they were relevant to the administration. 

On 7 January 1998 Shepherdson J. adjourned the application to 19 January 1998 for the purpose of allowing the respondents to file and serve any further affidavits and for the applicant to file and serve any affidavits in reply.  On 19 January, 1998, he further adjourned the matter to a date to be fixed.  On 13 January 1998 the solicitor for Mr Starkey had written to Mr Paramjit Singh demanding that he deliver any documents and records held by him by 16 January 1998 failing which Mr Starkey would have no alternative but to take steps by court proceedings if necessary to obtain the release of the documents.  This document would have been received no later than Thursday 15 January in the ordinary course of the post.  However Mr Paramjit Singh gave evidence that he had only become aware of the letter on Monday 19 January 1998.  He said that he did not clear his letterbox every day.  If that is the case the need to continue the proceedings for the purpose of obtaining the necessary documents was not attributable to the applicant.  Mr Paramjit Singh, as a deponent of an affidavit, was required for cross-examination and it was in those circumstances that he was eventually located and came to court to give evidence before me at the hearing, which was brought on again on 20 January 1998.  That evidence indicated that he had a number of documents which had not been previously disclosed.  Shepherdson J. had on 19 January 1998 also made an order that Paramjit Singh be added as a defendant but that had not been formally been done by the time the matter came on for hearing before me. 

It is against that background that the appropriate order for costs must be considered.  I am satisfied that the Administrator was justified in bringing the proceedings for delivery of the books and records to him.  The information in the correspondence and the information in the affidavits of the respondents was not calculated to enable him to appreciate what turned out to be the situation.  Further, had the respondents disclosed in clear terms that Mr Paramjit Singh was the person who had a number of the documents the Administrator may have chosen not to proceed against them.  Mr Paramjit Singh’s affidavit did not disclose the range of documents which he had and it was necessary for the hearing before me to proceed for that reason.  Although Mr Paramjit Singh was not formally a party to the proceedings by the time the matter came before me, an order had been made that he be joined as a respondent.  Having regard to what happened,  he ought to bear responsibility for some of the costs of the matter.  I propose to act on the basis that the original respondents are responsible for the matter having to come to court on 7 January 1998 and that they should bear the costs of and incidental to that hearing.  So far as the hearings on 19 and 20 January 1998 are concerned, the need for those hearings were prompted by the failure of Mr Paramjit Singh to disclose in his affidavit and produce to the Administrator the range of documents which he was subsequently ordered to produce.  Accordingly he should bear the costs of and incidental to the hearings of 19 and 20 January 1998. Any other reserved costs in respect of the earlier day of the hearing should be borne by the original respondents.

I order:

1.That the respondents Raghbir Singh and Mukhtiar Singh pay the applicant’s costs of and incidental to the motion including reserved costs, if any, up to an including the costs of the hearing on 7 January, 1998 to be taxed.

2.That Paramjit Singh pay the respondent’s additional costs, incurred by reason of the hearings on 19 and 20 January, 1998, to be taxed.