Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd

[2012] WASC 460 (S)

TRAFALGAR WEST INVESTMENTS PTY LTD -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [2012] WASC 460 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 460 (S)
Case No:	COR:105/2012	Heard:	ON THE PAPERS
Coram:	KENNETH MARTIN J	Delivered:	1/02/13
No of pages:	4	Judgment Part:	1 of 1
Result:	Order that the defendant registers two share transfers No order as to costs
Category:	B
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Parties:	TRAFALGAR WEST INVESTMENTS PTY LTD as trustee for TRAFALGAR WEST INVESTMENTS TRUST SUPERIOR LAWNS AUSTRALIA PTY LTD
Catchwords:	Dispositive orders Costs Turns on own facts
Legislation:	Corporations Act 2001 (Cth), s 1071F Rules of the Supreme Court 1971 (WA), O 66 r 8A Trustees Act 1962 (WA), s 78
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : TRAFALGAR WEST INVESTMENTS PTY LTD -v- SUPERIOR LAWNS AUSTRALIA PTY LTD [2012] WASC 460 (S) CORAM : KENNETH MARTIN J HEARD : ON THE PAPERS DELIVERED : 1 FEBRUARY 2013 FILE NO/S : COR 105 of 2012 BETWEEN : TRAFALGAR WEST INVESTMENTS PTY LTD as trustee for TRAFALGAR WEST INVESTMENTS TRUST

Plaintiff

AND

SUPERIOR LAWNS AUSTRALIA PTY LTD
Defendant

Catchwords:

Dispositive orders - Costs - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 1071F

Rules of the Supreme Court 1971 (WA), O 66 r 8A
Trustees Act 1962 (WA), s 78

(Page 2)

Result:

Order that the defendant registers two share transfers

No order as to costs

Category: B

Representation:

Counsel:

Plaintiff : No appearance
Defendant : No appearance

Solicitors:

Plaintiff : Karp Steedman Ross-Adjie
Defendant : Bennett & Co

Case(s) referred to in judgment(s):

Nil

(Page 3)

1 KENNETH MARTIN J: In the aftermath of my reasons for decision in this action, delivered 30 November 2012, the parties have each filed written submissions concerning appropriate dispositive orders, including as to costs. Only the orders as to costs are contentious. The defendant's written submissions were received on 2 January 2013 and the plaintiff's, on 14 January 2013. The parties are amenable to these outstanding issues being determined on the papers.

2 As to substantive disposition, the parties' respective submissions accept that an order in the following terms is appropriate:

'Pursuant to s 1071F of the Corporations Act 2001 (Cth), it is ordered that the defendant do register the two share transfers, copies of which are annexed to the affidavit of Patrick Gerard Gladwyn Jebb sworn 5 July 2012 (comprising part of annexure 'PGJ1' to that affidavit).'

I agree and accordingly, an order in those terms shall be made.

3 As to costs, the plaintiff contends it was the successful party and as such, costs should follow the event. The defendant submits, however, there should be no order as to costs. That negative costs submission is advanced by reason of an analysis of the issues as canvassed on the substantive application, particularly the plaintiff's failure in its efforts to secure relief by the alternate route of s 78 of the Trustees Act 1962 (WA) and as well, because its s 1071F application succeeded only by reference to its reliance upon 'transfer' and not as to any 'transmission' of the shares at issue.

4 Further potential costs issues are raised by reference to the plaintiff's assistance at the hearing from pro bono counsel and an availability in that circumstance of O 66 r 8A of the Rules of the Supreme Court 1971 (WA) as regards a costs award in such circumstances. But in view of my conclusion as to costs it is unnecessary in the end to canvass this matter.

5 I am of the view that the defendant's submissions as to costs must be accepted. It must be accepted that the substantive component of the plaintiff's written submissions and its oral arguments at the application, concerned the Trustees Act and the subject of an argued transmission of shares by law. On this issue the plaintiff ultimately lost.

6 The basis upon which the plaintiff ultimately won was very much, on my assessment, of overall argument, time engaged and resources consumed, given minimal, if not fleeting attention. On that basis, this is

(Page 4)

one of those exceptional cases where the eventual successful outcome should not dictate the costs outcome.

7 I point out that I did question, at an earlier directions hearing in this action (Mr Jebb attended as McKenzie friend for the plaintiff), why there is a need for any invocation of the Trustees Act, when the breadth of s 1071F seemed on the face of it to be of greater utility. I did not receive a satisfactory response. Nonetheless the eventual argument proceeded and chiefly, as I have mentioned, proceeded (unsuccessfully) by reference to the Trustees Act. In my assessment that exercise was wasteful, unnecessary and diverting of resources.

8 In these circumstances my assessment is that a just and the appropriate costs order, bearing in mind the end outcome in the exercise of discretion, is that there should be no order as to costs.

9 Those two orders as indicated, are now made.