Tan v AWAP SGT 26 Investment Ltd

[2012] FCA 835

FEDERAL COURT OF AUSTRALIA

Tan v AWAP SGT 26 Investment Ltd [2012] FCA 835

Citation:		Tan v AWAP SGT 26 Investment Ltd [2012] FCA 835
Parties:		TAN KAH HOCK (DANIEL), TAN KAH HONG (RICHARD) and DEO SILVER PTE LTD v AWAP SGT 26 INVESTMENT LIMITED, C N (HONG KONG) LIMITED, CHOU LI CHEN and CN 2000 HOLDINGS LIMITED
File number:		WAD 180 of 2007
Judge:		GILMOUR J
Date of judgment:		19 July 2012
Date of hearing:	19 July 2012
Place:	Perth
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	4
Counsel for the Applicant:	No appearance
Solicitor for the Applicant:	Hotchkin Hanly Lawyers
Counsel for the Respondent:	Mr D Lenhoff
Solicitor for the Respondent:	Holborn Lenhoff Massey

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 180 of 2007

BETWEEN:

TAN KAH HOCK (DANIEL)
First Applicant

TAN KAH HONG (RICHARD)
Second Applicant

DEO SILVER PTE LTD
Third Applicant

AND:

AWAP SGT 26 INVESTMENT LIMITED
First Respondent

C N (HONG KONG) LIMITED
Second Respondent

CHOU LI CHEN
Third Respondent

CN 2000 HOLDINGS LIMITED
Fourth Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	19 JULY 2012
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicants pay the respondents’ costs of the application, fixed on an indemnity basis, in the sum of $2000.

NOTE:   Entry of orders is dealt with in rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 180 of 2007

BETWEEN:

TAN KAH HOCK (DANIEL)
First Applicant

TAN KAH HONG (RICHARD)
Second Applicant

DEO SILVER PTE LTD
Third Applicant

AND:

AWAP SGT 26 INVESTMENT LIMITED
First Respondent

C N (HONG KONG) LIMITED
Second Respondent

CHOU LI CHEN
Third Respondent

CN 2000 HOLDINGS LIMITED
Fourth Respondent

JUDGE:	GILMOUR J
DATE:	19 JULY 2012
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is the final chapter of a long running dispute between the parties.  It concerns only the question of costs on the present application which was brought by the respondents after giving notice to the applicants’ solicitors.  The application sought a declaration that the amount of costs ordered by me in favour of the respondents on 23 April 2008 had been the subject of a subsequent agreement between the parties that the applicants would pay the respondents the sum of $3000 in full and final settlement of those costs.  There then followed correspondence between the party’s solicitors in which the solicitors for the respondents pressed for a payment of the amount agreed and eventually when payment was not made foreshadowed bringing the application which it has now brought. 

2. The sum of $3000 in costs was in fact paid but only after the present application, with supporting papers, was filed and served by the respondents’ solicitors.  I do not think it necessary to formally make a declaration concerning the fact that an agreement was reached in relation to costs.  That is a fact and the application was, in my opinion, reasonably brought by the respondent.  I brought to the attention of counsel appearing for the respondents this morning that some of the correspondence related to a different question of costs as well as the instant question of costs and suggested to him that the sum of $2540 which is sought by the respondents be reduced to the sum of $2000 to reflect that fact. 

3. The respondents are prepared in view of this fact to accept an order for costs in the sum of $2000.  I should add that this sum is calculated on a full indemnity basis.  I am satisfied that grounds exist for ordering indemnity costs.  There was an unexplained failure on the part of the applicants to attend to the very simple matter of paying the sum of money which had been agreed on their behalf should be paid.  They did not pay it.  It was not as if they were not in a position to pay it or at least there is no evidence as to that, and indeed, Mr Guy Douglas, the responsible partner with the law firm representing the applicants in relation to this application, informed the Court in writing that he had no instructions to appear today.  

4. Given that the earlier costs of $3000 have now been paid the appropriate orders are that the application be dismissed and that the applicants pay the respondents’ costs of the application fixed in the sum of $2000.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        8 August 2012