Trinity Properties Pty Ltd v Gilles, Joseph John - [1996] FCA 325

CATCHWORDS

COSTS - actions commenced by 6 companies apparently in receivership - motion brought to challenge authority to commence actions - receiver's consent not required for 3 companies, motion discontinued to that extent - receiver's consent given shortly after commencement of motion in relation to other 3 - motion discontinued by consent - moving party sought no order as to costs - respondent to the motion sought costs on indemnity basis - on the facts, proper for moving party to raise question of authority to bring action - but moving party did not act in reasonable or timely fashion - on balance costs awarded to respondent on the motion on party/party basis.

PRACTICE AND PROCEDURE - action commenced by 6 companies in receivership - motion brought to challenge authority to commence action - motion sought to have companies' solicitor named as second respondent - proper procedure to be followed where solicitor's authority challenged.

Attorney-General v Wylde (1946) 47 SR(NSW) 99

Mertelmeyer v Mertelmeyer (1904) 21 WN(NSW) 75

Selangor United Rubber Estates Ltd v Cradock (No 4) [1969] 3 All ER 965

In re Wilks (1933) 33 SR(NSW) 276

TRINITY PROPERTIES PTY LIMITED and OTHERS (Applicant) v JOSEPH JOHN GILLES, PETER NEIL BOLLARD, CATHERINE NANCY SIDOTI, GREGORY GEORGE ELIADES, GLENN KEVIN WALSH, PATRICK IGNATIUS LIM t/as R.F. GILES, PAYNE & CO. (Respondents)
Nos G3514-G3524 of 1995

FINN J
SYDNEY
9 MAY 1996

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No. G3514 of 1995
  )
GENERAL DIVISION                 )

IN THE MATTER OF TRINITY PROPERTIES PTY LIMITED
(ACN 002 782 452)

BETWEEN: TRINITY PROPERTIES PTY LTD
Applicant

AND: JOSEPH JOHN GILLES
  PETER NEIL BOLLARD
  CATHERINE NANCY SIDOTI
  GREGORY GEORGE ELIADES
  GLENN KEVIN WALSH
  PATRICK IGNATIUS LIM
  t/as R.F. GILES, PAYNE & CO.
  Respondents

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No. G3515 of 1995
  )
GENERAL DIVISION                 )

IN THE MATTER OF PALLISAR PTY LIMITED
(ACN 001 048 460)

BETWEEN: PALLISAR PTY LTD
Applicant

AND: JOSEPH JOHN GILLES
  PETER NEIL BOLLARD
  CATHERINE NANCY SIDOTI
  GREGORY GEORGE ELIADES
  GLENN KEVIN WALSH
  PATRICK IGNATIUS LIM
  t/as R.F. GILES, PAYNE & CO.
  Respondents

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No. G3519 of 1995
  )
GENERAL DIVISION                 )

IN THE MATTER OF KEDGE PTY LIMITED
(ACN 000 697 307)

BETWEEN: KEDGE PTY LTD
Applicant

AND: JOSEPH JOHN GILLES     PETER NEIL BOLLARD
  CATHERINE NANCY SIDOTI
  GREGORY GEORGE ELIADES
  GLENN KEVIN WALSH
  PATRICK IGNATIUS LIM
  t/as R.F. GILES, PAYNE & CO.
  Respondents

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No. G3520 of 1995
  )
GENERAL DIVISION                 )

IN THE MATTER OF WOODCO PTY LIMITED
(ACN 001 256 417)

BETWEEN: WOODCO PTY LTD
Applicant

AND: JOSEPH JOHN GILLES
  PETER NEIL BOLLARD
  CATHERINE NANCY SIDOTI
  GREGORY GEORGE ELIADES
  GLENN KEVIN WALSH
  PATRICK IGNATIUS LIM
  t/as R.F. GILES, PAYNE & CO.
  Respondents

IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES…

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.

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Details

Case: [1996] FCA 325
Decision Date: 9 MAY 1996

CaseChat Overview and Summary

Trinity Properties Pty Ltd and others sought to set aside a statutory demand served by R F Giles, Payne & Co, a firm of solicitors. The respondents, the principals of RFG, sought to challenge the authority of the solicitor representing the applicant companies, Mr Andrew Sutherland, to bring the actions. The dispute centred on whether the receivers of the applicant companies had authorised Mr Sutherland to commence the proceedings. The Federal Court of Australia was required to decide whether the respondents acted reasonably and timely in raising the issue of Mr Sutherland's authority and whether the notices of motion were procedurally misconceived.

The court held that while it was reasonable for the respondents to challenge Mr Sutherland's authority, they did not act in a reasonable or timely fashion in alerting him to the actual issue they were taking. The court rejected the respondents' argument that the joinder order sought was appropriate and found that the notices of motion were procedurally misconceived. The court concluded that the respondents should pay the costs of Mr Sutherland and the applicant companies on the usual basis, rather than indemnity costs. The court did not consider it necessary to address the question of whether the notices of motion were, in any event, doomed on procedural grounds.

The court ordered that the respondents pay the costs of Mr Sutherland and the respective applicant company in relation to the notice of motion in each of the six applications.

Orders