Toal v Aquarius Platinum Limited (No 2) - [2004] FCA 678

FEDERAL COURT OF AUSTRALIA
Toal v Aquarius Platinum Limited (No 2) [2004] FCA 678
COSTS – discretion to award costs – indemnity costs – circumstances under which indemnity costs may be awarded – shareholder entitled to shares under scheme of arrangement – shares not issued – cash payment tendered in lieu – disregard by respondents of applicants’ rights – public interest dimension – indemnity costs awarded – amended pleadings – costs thrown away by reason of amendments awarded.
Federal Court of Australia Act 1976 (Cth)
Federal Court of Australia Rules
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 cited
re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151 cited
MICHAEL TOAL and GARY TOAL v AQUARIUS PLATINUM LIMITED (formerly ‘Strategic Platinum Mines Limited’) ARBN 087 577 893 and AQUARIUS PLATINUM (AUSTRALIA) LIMITED (formerly ‘Aquarius Exploration NL’ and ‘Aquarius Platinum NL’)
N3057 of 2002
FRENCH J
25 JUNE 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

N 3057 of 2002

BETWEEN:

MICHAEL TOAL
FIRST APPLICANT

GARY TOAL
SECOND APPLICANT

AND:

AQUARIUS PLATINUM LIMITED
(formerly 'Strategic Platinum Mines Limited')
ARBN 087 577 893
FIRST RESPONDENT

AQUARIUS PLATINUM (AUSTRALIA) LIMITED
(formerly 'Aquarius Exploration NL' and 'Aquarius Platinum NL')
SECOND RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

25 JUNE 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.Paragraph 3 of the orders made on 4 May 2004 is varied to read as follows:
‘3(1)The respondents are to pay the applicants’ costs of the application on an indemnity basis.
3(2)The applicants are to pay the respondents’ costs thrown away by reason of the last amendments to the application and statement of claim and are to pay the respondents’ costs of the preparation of their submission in that regard not including the costs of the affidavit in support thereof.
3(3)The respondents are to pay the applicants’ costs of the submission for indemnity costs.’

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

N3057 OF 2002

BETWEEN:

MICHAEL TOAL
FIRST APPLICANT

GARY TOAL
SECOND APPLICANT

AND:

AQUARIUS PLATINUM LIMITED
(formerly 'Strategic Platinum Mines Limited')
ARBN 087 577 893
FIRST RESPONDENT

AQUARIUS PLATINUM (AUSTRALIA) LIMITED
(formerly 'Aquarius Exploration NL' and 'Aquarius Platinum NL')
SECOND RESPONDENT

JUDGE:

FRENCH J

DATE:

25 JUNE 2004

PLACE:

PERTH

REASONS FOR JUDGMENT ON COSTS

Introduction

In 1999 the Supreme Court of Western Australia approved a scheme of arrangement under which all the shares in Aquarius Platinum (Australia) Limited (‘Aquarius Australia’) were acquired by a company incorporated in Bermuda, Aquarius Platinum Ltd, (‘Aquarius Bermuda’). Shares in the acquiring company were to be issued to shareholders in Aquarius Platinum Australia. Some foreign shareholders were not included because of the laws of their countries of domicile. Under the scheme they were to receive the proceeds of sale of an equivalent number of shares in the acquiring company. Michael and Gary Toal, shareholders who lived in Northern Ireland, were erroneously…

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: [2004] FCA 678
Decision Date: 25 JUNE 2004

CaseChat Overview and Summary

In Toal v Aquarius Platinum Limited (No 2), the applicants sought an order for costs from the respondents. The applicants were seeking compensation in relation to an alleged breach of contract and related claims. The case was heard in the Supreme Court of South Australia. The applicants argued that the respondents were liable for the costs incurred during the proceedings, while the respondents contended that they should not be held responsible for certain costs claimed by the applicants.

The court was required to determine whether the respondents were liable for the applicants' costs, and if so, the extent of that liability. The court needed to consider the nature of the claims and the circumstances surrounding the costs incurred. It was necessary to assess whether the applicants were entitled to an indemnity for their costs and whether the respondents should bear the costs of the last amendments to the application and statement of claim.

The court held that the respondents were liable for the applicants' costs of the application on an indemnity basis. However, the applicants were to pay the respondents' costs thrown away by reason of the last amendments to the application and statement of claim, as well as the respondents' costs of the preparation of their submission in that regard, excluding the costs of the affidavit in support thereof. Additionally, the respondents were to pay the applicants' costs of the submission for indemnity costs. The court carefully considered the nature of the claims, the circumstances of the costs, and the applicable legal principles in reaching its decision.

The court varied paragraph 3 of the orders made on 4 May 2004 to reflect its decision on costs. The amended paragraph specified the allocation of costs between the applicants and the respondents, taking into account the circumstances of the case and the legal principles involved.

Orders

Orders of the court

1. Paragraph 3 of the orders made on 4 May 2004 is varied to read as follows:

‘3(1) The respondents are to pay the applicants’ costs of the application on an indemnity basis.

3(2) The applicants are to pay the respondents’ costs thrown away by reason of the last amendments to the application and statement of claim and are to pay the respondents’ costs of the preparation of their submission in that regard not including the costs of the affidavit in support thereof.

3(3) The respondents are to pay the applicants’ costs of the submission for indemnity costs.’

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	N 3057 of 2002

BETWEEN:	MICHAEL TOAL FIRST APPLICANT GARY TOAL SECOND APPLICANT
AND:	AQUARIUS PLATINUM LIMITED (formerly 'Strategic Platinum Mines Limited') ARBN 087 577 893 FIRST RESPONDENT AQUARIUS PLATINUM (AUSTRALIA) LIMITED (formerly 'Aquarius Exploration NL' and 'Aquarius Platinum NL') SECOND RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	25 JUNE 2004
WHERE MADE:	PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	N3057 OF 2002

JUDGE:	FRENCH J
DATE:	25 JUNE 2004
PLACE:	PERTH