Tovehead v Freeman

[2003] NTCA 12

Tovehead & Anor v Freeman [2003] NTCA 12

PARTIES:TOVEHEAD PTY LTD (ACN 003 745 140) and BRANIR PTY LTD (ACN 061 718 876)

v

FREEMAN, Kevin

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:AP 24 of 2002 (2011055)

DELIVERED:  24 June 2003

HEARING DATE:  15 April 2003

JUDGMENT OF:  MARTIN CJ, MILDREN & RILEY JJ

REPRESENTATION:

Counsel:

Appellant:J Reeves QC, I Meier

Respondent:  D Robinson, M Smith

Solicitors:

Appellant:Cridlands

Respondent:  Ward Keller

Judgment category classification:    B

Judgment ID Number:  ril0320

Number of pages:  3

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Tovehead & Anor v Freeman [2003] NTCA 12
No AP 24 of 2002 (20211055)

BETWEEN:

TOVEHEAD PTY LTD (ACN 003 745 140) and BRANIR PTY LIMITED (ACN 061 718 876)

Applicants

AND:

KEVIN FREEMAN

Respondent

CORAM:    MARTIN CJ, MILDREN & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 24 June 2003)

THE COURT:

1. On 15 April 2003 this Court, by majority, dismissed the application for leave to appeal.  At that time the applicants requested that the costs of the application and of the appeal below be reserved and the parties were invited to make their submissions on the issue in writing.  Those submissions have now been received.

1. The applicable principles are not in dispute.  In cases such as this, being proceedings alleging contempt of court, costs would ordinarily follow the event.  However the court retains a discretion:  Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 at 89-90.

2. It was the submission of the unsuccessful applicants that, in the circumstances of this matter, the respondent should not be entitled to any order for the costs of the application or for the hearing before Angel ACJ.  The basis of that submission focused upon the pretrial activities of the respondent.  It was submitted that the respondent should not have his costs because:

   (1)     the applicants solicitors sought an explanation from the          respondent prior to commencing proceedings for contempt and      no explanation was forthcoming;

   (2)     it was not until part-way through the hearing that the   respondent first raised the issue of a possible ambiguity in the    orders;

   (3)     the order was a consent order and the respondent was required      to do all things necessary to secure its performance;

   (4)     there was no evidence of any effort on the part of the respondent to ascertain the proper means of complying with    the consent order and complying with it.

3. The respondent, Kevin Freeman, filed an affidavit in the proceedings before Angel ACJ.  In that affidavit he set out the meaning which he attributed to the consent orders made on 1 August 2002.  He said in his affidavit that he did not regard himself as contravening the orders by entering upon the parts of the property to which the applicants had referred.  The order was found to be ambiguous both at first instance and before this Court.  The respondent attributed a different meaning to the terms of the order from that suggested by the applicants and, given the ambiguity, that may have been anticipated.  The conduct of the respondent to which the applicants refer is not unexpected in light of the respondent’s expressed understanding of the meaning of the order and is not such as would disentitle him to an order for costs.

4. The making of an order for costs comes down to a question of discretion.  In the circumstances of this matter, and taking into account the submissions made on behalf of the applicants, we see no reason why the ordinary rule should not apply.  The applicants were unsuccessful before Angel ACJ and have been unsuccessful in this Court.  The applicants must pay the costs of the respondent in each case.

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