Wilden Pty Ltd v Green
[2009] WASCA 38 (S)
•16 FEBRUARY 2009
WILDEN PTY LTD -v- GREEN [2009] WASCA 38 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASCA 38 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:101/2005 | 19-21 MAY 2008, 24 NOVEMBER 2008 & 15 JUNE 2009 | |
| Coram: | McLURE JA PULLIN JA NEWNES JA | 15/02/09 | |
| 6/07/09 | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Orders made | ||
| B | |||
| PDF Version |
| Parties: | WILDEN PTY LTD (ACN 009 143 033) MAGENTA NOMINEES PTY LTD (ACN 009 340 158) TACE PTY LTD (ACN 009 204 915) SYDNEY JAMES CHESSON BERT LEONARD DENBOER CALLAO PTY LTD (ACN 008 867 552) BENRONE PTY LTD (ACN 008 931 084) GRAEME WILLIAM GREEN W J GREEN & CO (1984) PTY LTD (ACN 008 851 867) SHARYN LEE GREEN JULIE ANNE GREEN WILLIAM JOSEPH GREEN NORMA GLENYCE GREEN |
Catchwords: | Orders to give effect to reasons Turns on own facts |
Legislation: | Nil |
Case References: | Wilden v Green [2009] WASCA 38 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WILDEN PTY LTD -v- GREEN [2009] WASCA 38 (S) CORAM : McLURE JA
- PULLIN JA
NEWNES JA
DECISION : 6 JULY 2009 FILE NO/S : CACV 101 of 2005 BETWEEN : WILDEN PTY LTD (ACN 009 143 033)
- First Appellant
MAGENTA NOMINEES PTY LTD (ACN 009 340 158)
Second Appellant
TACE PTY LTD (ACN 009 204 915)
Third Appellant
SYDNEY JAMES CHESSON
Fourth Appellant
BERT LEONARD DENBOER
Fifth Appellant
CALLAO PTY LTD (ACN 008 867 552)
Sixth Appellant
- BENRONE PTY LTD (ACN 008 931 084)
Seventh Appellant
AND
GRAEME WILLIAM GREEN
First Respondent
W J GREEN & CO (1984) PTY LTD (ACN 008 851 867)
Second Respondent
SHARYN LEE GREEN
GRAEME WILLIAM GREEN
JULIE ANNE GREEN
WILLIAM JOSEPH GREEN
NORMA GLENYCE GREEN
Third Respondents
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HASLUCK J
Citation : GREEN -v- WILDEN PTY LTD [2005] WASC 83
File No : CIV 3049 of 1991, CIV 3050 of 1991, CIV 2965 of 1990, CIV 2966 of 1990
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HASLUCK J
Citation : GREEN -v- WILDEN PTY LTD [2005] WASC 83 (S)
File No : CIV 3049 of 1991, CIV 3050 of 1991, CIV 2965 of 1990, CIV 2966 of 1990
(Page 3)
Catchwords:
Orders to give effect to reasons - Turns on own facts
Legislation:
Nil
Result:
Orders made
Category: B
Representation:
Counsel:
First Appellant : Mr M J McCusker QC & Mr T Galic
Second Appellant : Mr M J McCusker QC & Mr T Galic
Third Appellant : Mr M J McCusker QC & Mr T Galic
Fourth Appellant : Mr M J McCusker QC & Mr T Galic
Fifth Appellant : Mr M J McCusker QC & Mr T Galic
Sixth Appellant : Mr M J McCusker QC & Mr T Galic
Seventh Appellant : Mr M J McCusker QC & Mr T Galic
First Respondent : Mr M L Bennett
Second Respondent : Mr M L Bennett
Third Respondents : Mr M L Bennett
Solicitors:
First Appellant : Galic & Co
Second Appellant : Galic & Co
Third Appellant : Galic & Co
Fourth Appellant : Galic & Co
Fifth Appellant : Galic & Co
Sixth Appellant : Galic & Co
Seventh Appellant : Galic & Co
First Respondent : Lavan Legal
Second Respondent : Lavan Legal
Third Respondents : Lavan Legal
Case(s) referred to in judgment(s):
Wilden v Green [2009] WASCA 38
(Page 5)
1 JUDGMENT OF THE COURT: The reasons for decision in Wilden v Green [2009] WASCA 38 were delivered on 16 February 2009. On that date it was ordered that:
1. the parties attempt to agree a minute of proposed orders giving effect to the reasons;
2. within 14 days the appellants file a minute of proposed orders separately identifying those that are agreed and those that are not agreed;
3. within 14 days the respondents file a minute of any proposed orders that they seek which had not been agreed; and
4. each party file with their minutes of proposed orders short submissions in relation to proposed orders that are not agreed.
2 The appellants failed to comply with orders 2 and 4 within the specified time. On 30 March 2009 the court extended the time for complying with the orders. In the end, neither party complied with their obligations under orders 2 and 3. Each filed a stand-alone minute of all the orders for which they contended. The appellants' minute is dated 3 April 2009. The respondents' minute is dated 26 March 2009. It was largely left to the court to identify the matters of divergence and dispute.
3 The primary issues in contention between the parties are as follows. The respondents sought both interest on the repurchase price of their units from the date of the repurchase request until payment and, if a respondent was a net creditor, all distributions of income referable to their unit holding from the date of the repurchase request until the units were transferred to the relevant trustee (or as directed by the trustee).
4 It was accepted by both parties that under the Trust Deed the respondent unit holders were and remained the legal and beneficial owners of the units until the repurchase price was paid at which time the cancellation or transfer of the units would occur in accordance with cl 7 of the Trust Deed. Further, there was no claim by the appellants and no finding that the respondents had been in breach of any obligation to transfer the units.
5 The appellants' position was that it was prepared to agree to an order for the payment of interest from the date of the repurchase request until the transfer of the units but not to the payment of interest and income. The respondents wanted both and if they could not have both, they sought
(Page 6)
- their entitlement as beneficial owners of the units. As a matter of principle, the respondent unit holders are not entitled to both interest and income. In the absence of agreement, the order must be confined to an entitlement to income. In these circumstances, the appellants should not be awarded interest on the costs and disbursements which in any event is not expressly provided for in cl 7.7.
6 Other issues in contention related to costs. The respondents' position in relation to the costs of trial was as follows. First, they sought an order that the costs payable to the appellants be apportioned between and paid to specified appellants. Such an order is unusual and is based on an unsubstantiated (and unlikely) assumption that the appellants each contributed to the funding of the litigation in the same proportions divined by the respondents. The allocation of the costs between the appellants inter se is a matter which is properly left to them. The trustee appellants are required to protect the interests of their respective beneficiaries.
7 Secondly, the respondents sought an order apportioning liability to pay costs as between the first, second and third plaintiffs (respondents). The first and second plaintiffs were unit holders in the Balga Trust and the Summerfield Trust. The third plaintiffs were unit holders in the Kelmscott Trust. As almost all the issues at trial related to or affected the Balga Trust, the first and second plaintiffs should be jointly and severally liable for all the costs payable to the defendants (appellants). The third respondents should be jointly and severally liable for only 25% of that amount.
8 Thirdly, the respondents seek a reduction in the trial costs awarded to the appellants because of Wilden's failure in relation to the units in the Balga Trust issued in 1992. As the respondents' case at trial did not, to any significant extent, differentiate between the Balga Trust units issued in 1990 and those issued in 1992, I would make no reduction in the costs.
9 That is unlike the position in the appeal. Significant time and attention was directed in the appeal to the issue of the 1992 units as a separate matter. The time required to deal with the matter was a result of vagueness in the appellants' grounds of appeal and written submissions. That deficiency required the court to bring the parties back before it and resulted in an application to amend the grounds of appeal. A transcript would not have been required if the appellants had complied with their obligations to precisely and succinctly identify their grounds of appeal. Moreover, that general failure was an impediment to the timely and efficient disposition of the appeal. In determining the costs payable to the
(Page 7)
- appellants, regard has also been had to the attendance at court necessitated by the appellants' failure to comply with the orders made on 16 February 2009.
10 The respondents opposed the grant of a certificate for second counsel in the appeal on the basis that Mr Galic performed the functions of an instructing solicitor. However, that is contrary to the record which shows that Mr Galic was announced and appeared with senior counsel for the appellants at the hearing. The extent of his role as counsel is a matter that can be reflected in the assessment of the taxing master as to the appropriate allowance to be made.
11 Provision must also be made for returning the first, sixth and seventh appellants to their respective positions prior to the issue of the 1992 units. That matter was not addressed in the appellants' minute of proposed orders. The respondents sought a variant of orders 5 and 6 made by the primary judge. The approach in order 5 is acceptable but there is no justification for staying the payment.
12 Finally, the respondents seek a stay of the orders pending the determination of a foreshadowed special leave application. Such an order is consistent with the stay of the orders made by the primary judge and was not expressly opposed by the appellants.
13 The court hereby orders and declares that:
1. The appeal be allowed.
2. The orders made by Hasluck J on 9 August 2005 be set aside, except for orders:
(a) 4.3 and 4.4;
(b) 13.1, 13.2, 14 and 15;
(c) 31.1, 31.2, 31.3, 32 and 33; and
(d) 38, 39 and 40.
3. Order 14 made by Hasluck J on 9 August 2005 be amended to delete the reference to Mr Carrello and insert in lieu thereof 'Wilden Pty Ltd'.
4. The determination of current repurchase value made by each valuer is valid.
(Page 8)
- 5. The respondents are entitled to be paid for their units the amount determined by reference to the relevant applicable current repurchase value (less any deductions for stamp duty and other disbursements properly incurred by the relevant trustee upon or in respect of the repurchase).
6. The respondents are entitled to be paid:
(a) the amount (if any) paid or credited as having been paid by way of income distribution to holders of units in the trust in which they hold units from the date of the repurchase request until the cancellation or transfer of the units to or at the direction of the trustee; and
(b) interest on the amounts referred to in (a) accruing at the rate the funds would have earned if invested in an interest-bearing deposit with the banker to the trust.
7. If upon the determination of the amounts owing under orders 2(b) and (c), 5 and 6:
(a) a net amount is payable to a respondent(s), then on payment of the net amount the respondent(s) shall transfer their units to or at the direction of the relevant trustee;
(b) a net amount is payable by a respondent(s), they shall forthwith transfer their units to or at the direction of the relevant trustee.
8. The trustee of the Balga Bazaar Unit Trust (the Balga Trust) shall:
(a) ascertain the funds received by Wilden Pty Ltd (Wilden) as trustee of the Balga Trust for the purported issue of units referred to in orders 4.3 and 4.4 of the judgment of Hasluck J on 9 August 2005;
(b) ascertain the moneys paid or credited as having been paid by way of capital distribution or income distribution to the purported holders of the units referred to from the date such units were purportedly issued until the date of these orders; and
(c) thereafter set off against the sum found to have been received by Wilden under order 8(a), the funds found to have been credited or paid by way of capital distribution or
- income distribution to the purported unit holders under order 8(b) (the net sum).
- 9 The net sum is payable to the relevant person(s) with 10 days from the date of its determination under order 8.
10. If the parties are unable to agree upon the amounts payable by the respondents to the appellants or by the appellants to the respondents or by the appellants to other appellants as the case may be pursuant to orders 5, 6 and 8, then:
(a) leave be granted to the appellants and the respondents (or any of them), to apply to a single judge of this court for an order that there be mediation with respect to such matters as the parties are unable to agree; and that
(b) in the absence of agreement (either before or consequent upon mediation) an account be taken before a registrar of this court for the purpose of determining those matters.
11. Payment of any amount payable by any of the appellants (defendants) to any of the respondents (plaintiffs) determined in accordance with the foregoing orders be stayed until the appellants' costs of the appeal and of the action have been taxed or agreed, and the taxed or agreed costs set off (as the appellants see fit) against any amount payable to any respondent, so that only the balance (if any) after such set off will be payable.
12. Save for the declarations made by order 4.3 and 4.4 by Hasluck J on 9 August 2005, the plaintiffs' (respondents') claims in the action be dismissed.
13. The first and second plaintiffs do pay to the defendants the costs of the action and the counterclaim to be taxed as a single bill. The third plaintiffs shall be jointly and severally liable to the defendants for 25% of the said taxed costs. The defendants are entitled to:
(a) a certificate for second senior counsel;
(b) all reserved costs;
(c) transcript fees;
(d) expert witness fees; and
- (e) the costs of preparing the defence and counterclaim, discovery and inspection, and getting up the case for trial without regard to any limit imposed by any applicable scale.
- 14. The first and second respondents do pay to the appellants 80% of the costs of the appeal to be taxed as a single bill. The third respondent shall be jointly and severally liable to the appellants for 25% of the said taxed costs. The appellants are entitled to a certificate for second counsel.
15. The suspension order made by Hasluck J on 25 August 2005 be discharged.
16. In the event the respondents apply within time for special leave to appeal to the High Court from these orders, there be a stay of the orders until the determination of the special leave application.
17. There be liberty to apply generally.
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