Westgem Investments Pty Ltd (Receivers and Managers) (Administrator Appointed) v Saracen Project Management Pty Ltd [No 2]

[2012] WASC 358 (S)

WESTGEM INVESTMENTS PTY LTD (RECEIVERS AND MANAGERS) (ADMINISTRATOR APPOINTED) -v- SARACEN PROJECT MANAGEMENT PTY LTD [No 2] [2012] WASC 358 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 358 (S)
Case No:	CIV:1128/2011	Heard:	ON THE PAPERS
Coram:	CORBOY J	Delivered:	3/04/13
No of pages:	4	Judgment Part:	1 of 1
Result:	Costs ordered to be in the cause
Category:	B
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Parties:	WESTGEM INVESTMENTS PTY LTD (RECEIVERS AND MANAGERS) (ADMINISTRATOR APPOINTED) MARK FRANCIS XAVIER MENTHA AND CLIFFORD STUART ROCKE AS RECEIVERS AND MANAGERS OF WESTGEM INVESTMENTS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ADMINISTRATOR APPOINTED) SARACEN PROJECT MANAGEMENT PTY LTD LUKE SARACENI
Catchwords:	Practice and procedure Costs Whether the costs of a mandatory injunction should be in the cause or whether they should be paid forthwith by the respondent to the application No new principles
Legislation:	Nil
Case References:	Westgem Investments Pty Ltd (Receivers and Managers) (Administrator appointed) v Saracen Project Management Pty Ltd [No 2] [2012] WASC 358

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WESTGEM INVESTMENTS PTY LTD (RECEIVERS AND MANAGERS) (ADMINISTRATOR APPOINTED) -v- SARACEN PROJECT MANAGEMENT PTY LTD [No 2] [2012] WASC 358 (S) CORAM : CORBOY J HEARD : ON THE PAPERS DELIVERED : 3 APRIL 2013 FILE NO/S : CIV 1128 of 2011 BETWEEN : WESTGEM INVESTMENTS PTY LTD (RECEIVERS AND MANAGERS) (ADMINISTRATOR APPOINTED)

First Plaintiff

MARK FRANCIS XAVIER MENTHA AND CLIFFORD STUART ROCKE AS RECEIVERS AND MANAGERS OF WESTGEM INVESTMENTS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ADMINISTRATOR APPOINTED)
Second Plaintiffs

AND

SARACEN PROJECT MANAGEMENT PTY LTD
First Defendant

LUKE SARACENI
Second Defendant

(Page 2)

Catchwords:

Practice and procedure - Costs - Whether the costs of a mandatory injunction should be in the cause or whether they should be paid forthwith by the respondent to the application - No new principles

Legislation:

Nil

Result:

Costs ordered to be in the cause

Category: B

Representation:

Counsel:

First Plaintiff : No appearance (On the Papers)
Second Plaintiffs : No appearance (On the Papers)
First Defendant : No appearance (On the Papers)
Second Defendant : No appearance (On the Papers)

Solicitors:

First Plaintiff : Norton Rose Australia
Second Plaintiffs : Norton Rose Australia
First Defendant : Jackson McDonald
Second Defendant : Jackson McDonald

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

Westgem Investments Pty Ltd (Receivers and Managers) (Administrator appointed) v Saracen Project Management Pty Ltd [No 2] [2012] WASC 358


(Page 3)

CORBOY J:

The application

1 I made an order in this action requiring the first defendant to pay an amount (referred to as the 'Disputed Amount') into a specified bank account (the GST Account) standing in the name of the first plaintiff and held with Bank of Western Australia Ltd. The order was made on an application for interlocutory relief.

2 The plaintiffs have applied for an order that the first defendant pay the costs of the application on the following grounds:

(a) The order that was made was mandatory in effect. Although the same principles apply whether an injunction is mandatory or prohibitive, ordinarily the court must be more confident that the plaintiff will ultimately succeed at trial where a mandatory injunction is granted. That reflects the practical reality that a mandatory injunction will often dispose of the subject matter of the proceedings and effectively determine the parties' dispute.

(b) It was entirely unclear as to whether and when the balance of the action would be litigated in light of the other (numerous) proceedings on foot between the parties.

3 The first defendant opposes the application on the ground that the costs of an application for an interlocutory injunction are usually costs in the cause. Although it accepted that each case must depend on its own facts, the first defendant submitted that there was no reason to depart from the usual order in this case.

The relevant principles

4 Plainly, the costs of an interlocutory injunction are at the discretion of the court. However, it is common practice for the costs of an interlocutory injunction to be costs in the cause or the plaintiff's costs in the cause. That is because the court does not ordinarily assess the merits of the parties' respective cases beyond satisfying itself that the applicant has established a prima facie case for relief. The court is concerned with the balance of convenience in the circumstances that prevail at the time of the application once it has satisfied itself about that requirement. Frequently, the application is made at about the time that the proceedings were commenced.

(Page 4)

5 The court may depart from the usual practice where it is apparent that either party has acted unreasonably in bringing or defending the application for interlocutory relief. In such a case, it may be appropriate to order the unreasonable party to bear some or all of the costs of the application. The court will also facilitate the conclusion of proceedings by making a costs order where it is clear that neither party wishes to proceed with the litigation once the interlocutory application has been heard and determined.

Conclusion

6 In my view, neither of the grounds advanced by the plaintiffs justify departing from the usual practice that the costs of an application for an interlocutory injunction be in the cause. There are three reasons for that conclusion:

(a) The grant of interlocutory relief was not intended to finally determine the litigation. An argument that the grant of an interlocutory injunction requiring the Disputed Amount to be paid into the GST Account would finally dispose of the question of the plaintiffs' entitlement to the money was rejected at the time that the injunction was granted: Westgem Investments Pty Ltd (Receivers and Managers) (Administrator appointed) v Saracen Project Management Pty Ltd[No 2] [2012] WASC 358 [73].

(b) Consistent with that finding, the action remains on foot and directions have recently been made for the future conduct of the matter.

(c) The defendants did not act unreasonably in resisting the application for the interlocutory injunction (and it was not suggested that they did so).