TODD -v- NOVOTNY & ANOR [2001] WASC 171 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 171 (S)
Case No:	CIV:2281/1996	Heard:	28 MARCH, 10 APRIL, 30 JULY 2001
Coram:	PARKER J	Delivered:	29/06/01
Supplementary Delivered:	19/12/01
No of pages:	5	Judgment Part:	1 of 1
Result:	Costs reserved to trial judge
Category:	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

CITATION : TODD -v- NOVOTNY & ANOR [2001] WASC 171 (S) CORAM : PARKER J HEARD : 28 MARCH, 10 APRIL, 30 JULY 2001 DELIVERED : 29 JUNE 2001 SUPPLEMENTARY
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.

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.

Continue reading Todd v Novotny

Details

AGLC: Todd v Novotny [2001] WASC 171 (S)
Case: [2001] WASC 171 (S)
Decision Date

CaseChat Overview and Summary

The case of Todd v Novotny, heard in the Supreme Court of Western Australia, involves Robert Joseph Torrance Todd, the plaintiff, and Michael Novotny and Backload Pty Ltd, the defendants. The dispute revolves around an unsuccessful application for an asset preservation order, which the plaintiff sought pending the trial of the main action. The court was required to decide the issue of costs related to this application, with the defendants seeking an order for their costs regardless of the outcome, and the plaintiff opposing this request. The plaintiff argued that it would be unjust to order them to pay the defendants' costs due to the nature of the application and the established risk of asset dissipation.

The court considered various factors in reaching its decision, including the unusual complexity of the law and facts involved in the application, the substantial amount of documentary and other material presented by both parties, and the conduct of the defendants, which appeared to involve an attempt to mislead the court. The court found that it would be inappropriate for the defendants to have their costs of the application in any event and that an order for costs to be in the cause could lead to unfairness. The court decided to reserve the costs of the application to the trial judge, as the outcome of the action may be relevant to the assessment of the costs burden.

Additionally, the court recommended that the taxation of costs should be conducted without regard to the limit set by item 23, and that a certificate for the transcript of the application would be appropriate. The court also suggested that directions be given to the taxing officer to make a reasonable allowance for photocopying and the work involved in preparing and considering the other party's outline of submissions and supporting evidentiary references. The court found that the taxing officer might properly allow for representation by counsel and the attendance of an instructing solicitor, both at a senior practitioner level, but not for a second counsel. Ultimately, the costs of the application were reserved to the trial judge.

Orders