JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: TODD -v- NOVOTNY & ANOR [2001] WASC 171
CORAM: PARKER J
HEARD: 28 MARCH 2001 & 10 APRIL 2001
DELIVERED : 29 JUNE 2001
FILE NO/S: CIV 2281 of 1996
BETWEEN: ROBERT JOSEPH TORRANCE TODD
Plaintiff
AND
MICHAEL NOVOTNY
First DefendantBACKLOAD PTY LTD (ACN 009 451 192)
Second Defendant
Catchwords:
Practice and procedure - Mareva injunction - Arguable case - Risk of dissipation of assets - Whether plaintiff's prospects of success warrant relief
Legislation:
Nil
Result:
Interim interlocutory injunction discharged
Application dismissed
Representation:
Counsel:
Plaintiff: Mr M J McCusker QC & Mr P A Tottle
First Defendant : Mr M H Zilko
Second Defendant : Mr M H Zilko
Solicitors:
Plaintiff: Tottle Christensen
First Defendant : Williams & Hughes
Second Defendant : Williams & Hughes
Case(s) referred to in judgment(s):
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Films Rover International Ltd & Ors v Cannon Film Sales Ltd [1986] 3 All ER 772
Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft Mbh und Co KG [1983] 1 WLR 1412
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Rasu Maritima SA v Perusahaan [1978] QB 644
Shepherd Homes v Sandham [1971] Ch 340
Todd v Novotny & Anor [2000] WASC 308
Case(s) also cited:
Cambridge Credit Corporation Ltd (receiver appointed) v Surfers' Paradise Forests Ltd [1977] Qd R 261
Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing NSW Ltd (1987) 76 ALR 633
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Cool Sonic International Inc v Cool Sonic Research Pty Ltd (in liq) & Ors [1999] VSC 344
Derby & Co Ltd & Ors v Weldon & Ors (No 3 and 4) [1989] 2 WLR 412
DMW & Anor v CGW (1982) 151 CLR 491
Galaxia Maritime SA v Mineralimportexport [1982] 1 All ER 796
Kounis v Kounis (1987) 11 ACLR 854
Locabail International Finance Ltd v Agroexport [1986] 1 WLR 657
Miller v Jackson [1977] QB 966
Mitchell v Saengjan (1994) 117 FLR 273
Neat Holdings v Karajan Holdings Pty Ltd (1992) 8 WAR 183
Patrick Stevedore Operations No 2 Pty Ltd v Maritime Union of Australia (No 1) (1998) 72 ALJR 868
Perrey v Mordiesel Co Pty Ltd [1976] VR 569
Perth Mint v Mickelberg (No 2) [1985] WAR 117
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Project Development Co Ltd SA v KMK Securities Ltd [1983] 1 All ER 465
Queensland v Australian Telecommunications Commission (1985) 59 ALJR 362
R v Abadom [1983] 1 All ER 364
R v Turner [1975] QB 834
Raviner Rohini Pty Ltd v Krizaic (1991) 105 ALR 593
Re Westbourne Galleries Ltd [1973] AC 360
Riley McKay Pty Ltd v McKay (1982) 1 NSWLR 264
Santos & Associates v Glowtime Pty Ltd & Anor [2000] WASC 58
Tsimidopoulos &
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- AGLC
- Todd v Novotny [2001] WASC 171
- Case
- [2001] WASC 171
- Decision Date
CaseChat Overview and Summary
The court held that the defendants' request for costs should not be granted outright, as the unique circumstances of the case did not align with the precedents cited. Instead, the court found it more appropriate to reserve the costs of the application to the trial judge, allowing for a comprehensive assessment at the trial stage. The court reasoned that the unusual complexity of the application warranted a taxation of costs without regard to the limits set by the Rules of the Supreme Court. It was also noted that the overlap with trial preparation warranted a detailed examination, which could be better handled by the taxing officer.
In light of the above considerations, the court determined that a certificate for a transcript of the application would be appropriate, and it directed the taxing officer to consider reasonable allowances for photocopying and the preparation of outlines of submissions and evidentiary references. The court also ruled that while costs for representation by counsel and the attendance of a senior instructing solicitor were permissible, additional counsel fees were not warranted.
Ultimately, the court's decision to reserve the costs to the trial judge ensures that the complexities and overlaps in the case are thoroughly evaluated, providing a fair and just outcome for both parties.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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. 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. I would record the following views, however, for the assistance of the trial judge and the taxing officer. 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. 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 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. It would be my view that a certificate for transcript of the application would be appropriate. 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. 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.