Todd v Novotny
[2001] WASC 171 (S)
TODD -v- NOVOTNY & ANOR [2001] WASC 171 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 171 (S) | |
| Case No: | CIV:2281/1996 | 28 MARCH, 10 APRIL, 30 JULY 2001 | |
| Coram: | PARKER J | 29/06/01 | |
| 19/12/01 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Costs reserved to trial judge | ||
| B | |||
| PDF Version |
| Parties: | ROBERT JOSEPH TORRANCE TODD MICHAEL NOVOTNY BACKLOAD PTY LTD (ACN 009 451 192) |
Catchwords: | Procedure Costs Unsuccessful application for asset preservation order Unusual circumstances |
Legislation: | Nil |
Case References: | Southern Equities Corporation Ltd (in liq) & Ors v Bond & Ors (No 4) [2000] SASC 358 Steepleglade Ltd v Stratford Investments Ltd (1976) 2 FSPLR 3 Allied Collection Agencies Ltd v Wood & Anor [1981] 3 All ER 176 Collins v Westralian Sands Ltd (1993) 9 WAR 56 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 19 DECEMBER 2001 FILE NO/S : CIV 2281 of 1996 BETWEEN : ROBERT JOSEPH TORRANCE TODD
- Plaintiff
AND
MICHAEL NOVOTNY
First Defendant
BACKLOAD PTY LTD (ACN 009 451 192)
Second Defendant
Catchwords:
Procedure - Costs - Unsuccessful application for asset preservation order - Unusual circumstances
Legislation:
Nil
(Page 2)
Result:
Costs reserved to trial judge
Category: B
Representation:
Counsel:
Plaintiff : Mr P A Tottle
First Defendant : Mr P Redding
Second Defendant : Mr P Redding
Solicitors:
Plaintiff : Tottle Christensen
First Defendant : Williams & Hughes
Second Defendant : Williams & Hughes
Case(s) referred to in judgment(s):
Southern Equities Corporation Ltd (in liq) & Ors v Bond & Ors (No 4) [2000] SASC 358
Steepleglade Ltd v Stratford Investments Ltd (1976) 2 FSPLR 3
Case(s) also cited:
Allied Collection Agencies Ltd v Wood & Anor [1981] 3 All ER 176
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
(Page 3)
1 PARKER J: This supplementary decision concerns the costs of an application for an asset preservation order which the plaintiff sought pending the trial of this action.
2 Following an earlier unsuccessful application for similar relief, by summons filed on 13 November 2000 the plaintiff sought an asset preservation order. Interim interlocutory relief was granted on 15 December 2000 – see Todd v Novotny & Anor [2000] WASC 308 – but this was done on the basis that the defendants should have time to fully assemble and present further evidence in opposition to the continuance in force of the interim order. That further full hearing of the merits took place in March and April 2001 and the decision dismissing the application and discharging the interim interlocutory order was delivered on 29 June 2001 – see Todd v Novotny & Anor [2001] WASC 171.
3 Even so, the plaintiff did establish that there was a prima facie case and that there was a risk of dissipation. The application failed because the prima facie case was not sufficiently strong to justify the considerable restraint which an interlocutory order of this nature would have imposed in the circumstances. It was not the case that the bringing of the application was obviously unjustified.
4 The defendants seek orders for their costs in respect of the application in any event. This is opposed by the plaintiff who submits that, given the nature of the application, the finding that a risk of dissipation of assets had been established and that there was a prima facie case, it would be unjust for there to be an order against the plaintiff to pay the costs of the application in any event. The plaintiff submits that either costs should be reserved to the trial judge or should be in the cause.
5 In addition to the circumstances already identified there are additional factors, which when all are taken together, mark this as an unusual case for the purposes of the exercise of the discretion as to costs.
6 The hearing of the application was unusually lengthy and involved matters of legal and factual difficulty. The affidavit evidence placed a surprising, and at times unnecessary, amount of documentary and other material before the Court. This was true on both sides. To a substantial degree, in these respects, the hearing may be seen as involving what was in substance a rehearsal of critical issues in the action. Much of the work involved in respect of the application, on both sides, was thus work which would have needed to be done in any event in the preparation for trial of the respective parties.
(Page 4)
7 Further, the conduct of the defendants in connection with their opposition to the application involved, as the reasons for decision delivered on 29 June 2001 disclose, an apparent attempt to mislead the Court on a material issue, and also reliance on what appeared to be unsatisfactory and questionable affidavit evidence as to the bank accounts of the first defendant and discovery.
8 All these factors being taken into consideration, it appears to me that it would be quite inappropriate for the defendants to have their costs of the application in any event. Further, an order that costs be in the cause could well lead to unfairness. There are material distinctions between the present case and the circumstances in Southern Equities Corporation Ltd (in liq) & Ors v Bond& Ors (No 4) [2000] SASC 358 at [5], and Steepleglade Ltd v Stratford Investments Ltd (1976) 2 FSPLR 3 to which the plaintiff referred.
9 In my view the appropriate order is to reserve the costs of this application to the trial judge as the outcome of the action may well be relevant to an assessment of where the costs burden of this application should ultimately fall as between the parties. A further advantage of reserving the costs is that the effect of the clear overlap between the work done in connection with this application and the ultimate trial of the action can be better assessed by the trial judge at the same time as the costs of the trial are being considered. That advantage will carry through to the role of the taxing officer as well.
10 I would record the following views, however, for the assistance of the trial judge and the taxing officer.
11 There was, in my view, unusual complexity of law and fact within the meaning of RSC O 66 r 12(1) for an application of this type. For this reason, I would have been persuaded that the taxation of costs in respect of this application should be conducted without regard to the limit set by item 23. That being so, there would be no sufficient justification, in my view, for separate allowance under item 13A as sought by the defendants. Such an order would not be appropriate in any event, in my view, as adequate allowance can be made for time properly spent in preparation under item 23 if the taxation is conducted without regard to the limitation prescribed by item 23.
12 I would not be minded to fix any limit for the purposes of item 23 as it appears to me that to do so would potentially cut across the due exercise of the taxing officer's discretion in a case where a reasoned attempt to fix
(Page 5)
- an appropriate limit would involve a more detailed assessment of the work actually done by the respective parties than can be made on the materials presently before me. In addition, this aspect is complicated by the question of overlap with the preparation for trial, a factor which, at least in some respects, may best be dealt with by the taxing officer in light of the more detailed examination possible on taxation.
13 It would be my view that a certificate for transcript of the application would be appropriate.
14 It would appear that directions might properly be given to the taxing officer that it would be appropriate for a reasonable allowance to be separately made for photocopying and for the work involved in preparing, and in considering the other party's, outline of submissions and supporting evidentiary references.
15 In my view allowance might properly be made by the taxing officer for representation by counsel and the attendance of an instructing solicitor, both at senior practitioner level, but not for a second counsel.
16 The costs of the application will stand reserved to the trial judge.
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