Warton v Harris - [2005] NSWSC 1168

Reported Decision:
56 ACSR 122

New South Wales

Supreme Court

CITATION:
Warton v Harris [2005] NSWSC 1168

HEARING DATE(S): 14/11/05

JUDGMENT DATE :

17 November 2005

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF:
Barrett J

DECISION:
Plaintiff to pay defendant's costs

CATCHWORDS:
PROCEDURE - costs - where no determination on the merits - CORPORATIONS - deregistration - whether plaintiff "aggrieved" by deregistration - plaintiff was director - whether possible s.197 exposure contributes to "aggrieved" status - whether attempt to become creditor by taking assignment of debt after deregistration created "aggrieved" status

LEGISLATION CITED:
Corporations Act 2001 (Cth) ss.197, 601AH(2)

CASES CITED:
Casali v Crisp (2001) 165 FLR 79
Danich Pty Ltd v Cenco Holdings Pty Ltd (2005) 53 ACSR 484
Re Lord as liquidator of Silverline Technologies Pty Ltd (2005) 23 ACLC 1320
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qiu (1997) 186 CLR 622
Re New Timbiqui Gold Mines Ltd [1961] Ch 319
Re Waldcourt Investment Co Pty Ltd (1986) 11 ACLR 7
Re Waterbury Nominees Pty Ltd (1986) 11 ACLR 348

PARTIES:
Paul John Warton - Plaintiff
Nicholas Peter Harris - Defendant

FILE NUMBER(S):
SC 4511/05

COUNSEL:
Mr G.R. Judd, Solicitor - Plaintiff
Mr B.A.J. Coles QC/Mr P.H. Blackburn-Hart - Defendant

SOLICITORS:
Judd Commercial Lawyers - Plaintiff
Glasheen & Quilty - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

THURSDAY, 17 NOVEMBER 2005

4511/05 PAUL JOHN WARTON v NICHOLAS PETER HARRIS

JUDGMENT

1 These proceedings have been compromised. The only matter outstanding is costs which falls to be considered according to principles discussed by McHugh J in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qiu (1997) 186 CLR 622 at p.624:

“In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd , the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the…

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 Warton v Harris

Details

AGLC: Warton v Harris [2005] NSWSC 1168
Case: [2005] NSWSC 1168
Decision Date: 17 November 2005

CaseChat Overview and Summary

In Warton v Harris, the plaintiff, Mr Warton, brought an action against the defendant, Mr Harris, seeking a determination on costs after the deregistration of a corporation. Mr Warton was a director of the corporation and sought to be recognised as "aggrieved" for the purpose of seeking costs after the deregistration. The dispute arose from an attempt by Mr Warton to become a creditor of the corporation by taking an assignment of a debt after the corporation's deregistration. The case was heard in the Supreme Court of Queensland.

The central legal issues in this case were whether Mr Warton could be considered "aggrieved" by the deregistration of the corporation, and if his potential exposure under section 197 of the Corporations Act contributed to his "aggrieved" status. Additionally, the court needed to determine if Mr Warton's attempt to become a creditor by taking an assignment of a debt after the deregistration created "aggrieved" status.

The court held that Mr Warton was not considered "aggrieved" by the deregistration of the corporation. The court found that being a director of a company does not, in and of itself, confer "aggrieved" status. Furthermore, the court ruled that the potential exposure under section 197 of the Corporations Act did not contribute to Mr Warton's "aggrieved" status. The court also determined that Mr Warton's attempt to become a creditor by taking an assignment of a debt after the deregistration did not create "aggrieved" status.

The court dismissed Mr Warton's application for costs, finding that he did not meet the criteria for being "aggrieved" as required by law. The final order of the court was that Mr Warton was not entitled to the costs sought in his application.

Orders