Collie v Merlaw Nominees Pty Ltd [2003] VSC 424

Supreme Court of Victoria|2003-10-24|Before: NETTLE J

Practice and procedure - application to set aside order made by the Prothonotary under Rule 59.06 - pursuant to Rule 46.08 and Rule 1.14.

1 Application made by summons dated 24 June 2003 to set aside an order which purports to have been made by the Prothonotary under Rule 59.06.

"(1) There is judgment for the plaintiff against the first defendant in the sum of $92,784.74 together with damages by way of interest in the sum of $105,835.61. (2) The firstnamed defendant pay the costs of the plaintiff including any reserved costs and transcript. (3) There is judgment for the thirdnamed defendant against the plaintiff. (4) The plaintiff pay the costs of the thirdnamed defendant including any reserved costs on a solicitor/client basis."

3 On 16 February 2000, Merlaw Nominees Pty Ltd was placed into creditors voluntary liquidation and Mr Gess Rambaldi of Messrs Pitcher Partners was appointed liquidator. Merlaw Nominees Pty Ltd had by that time ceased to be trustee of the Prudent Trust and Damien John Nolan had been appointed in its place.

4 On 31 May 2000, the plaintiff instituted Proceeding 5565 of 2000 seeking to enforce by way of subrogation the rights of Merlaw Nominees Pty Ltd as trustee to be indemnified in respect of the judgment debt out of the assets of the Prudent Trust.

5 On 9 March 2001, Warren J made final orders that Merlaw Nominees Pty Ltd was entitled to indemnity out of and to exoneration from the assets of the Prudent Trust in respect of the judgment and that the plaintiff was entitled by way of subrogation to an indemnity out of and to exoneration from the trust estate in respect of the judgment.

6 On 15 July 2001, the solicitors for the plaintiff and the solicitors for the liquidator of Merlaw Nominees Pty Ltd filed with the Prothonotary a minute of order which they proposed be entered by consent pursuant to Rule 59.06, to the effect that the costs payable by Merlaw Nominees Pty Ltd to the plaintiff in accordance with the judgment of Byrne J of 24 November 1999 be fixed in the amount of $150,000.

7 It appears, however, that at least to begin with, the Prothonotary was opposed to that course. Thus in a letter to the Associate to Master Cain dated 14 August 2001, the solicitors for the plaintiff recorded among other things: "We have been advised by the Prothonotary's office that judgment cannot be entered without the consent of all parties to the proceeding. We will not be able to obtain the consent of the parties and therefore seek to make an application under Order 59.07 ... for an order in the terms of the minute of consent order."

8 But later, for reasons which have not been explained and do not appear, on 14 August 2001 the Prothonotary did make an order purportedly as an order by consent pursuant to Rule 59.06, in the terms of the minutes of consent order and with the consent only of the plaintiff and the liquidator of Merlaw Nominees Pty Ltd.

9 On 16 August 2001, the thirdnamed defendant learned for the first time of the existence of the consent order when it was disclosed in an affidavit sworn on that date by one Jennifer Anne Draddy a solicitor employed by the plaintiff's solicitor, in support of an interlocutory application made to Beach J on 17 August 2001.

10 On 18 and 19 September 2001, John Nolan made inquiries of the Prothonotary as to how it came about that the order had been made without the consent of the thirdnamed defendant. Consequent upon those inquiries, on 23 September 2001, the thirdnamed defendant wrote to the plaintiff's solicitors as follows:

"As I am currently advised your firm is solicitor on record in the above matter. I have recently been provided with a copy of the attached document which I understand has been filed and the order authenticated by the Prothonotary on 14th August 2001. As you will observe the document was lodged by Howie & Maher. I have caused enquiries to be made of the Prothonotary. The initial comment from Rowena the clerk handling the matter in his office was 'I knew this would come back to bite us on the ...' She however has also advised that since the order has been authenticated the Prothonotary has no power to revoke it. The document is clearly irregular, does not comply with the rules and should not have been accepted by the Prothonotary. For your information rule 59.06 states as follows: (1) Unless the Court constituted by a Judge otherwise orders, if all the parties to a proceeding are agreed upon the terms in which a judgment should be given, or an order made, in the proceeding, a judgment or order in those terms may be sought in accordance with this Rule. (8) This Rule shall not apply to any judgment or order in a proceeding - (a) in which any party has no solicitor in the proceeding or is a person under disability; (b) to which any chapter of the Rules of the Supreme Court other than Chapter 1 applies; (c) to which Chapter II of the Rules of the County Court applies. The document is in clear breach of the rules. Firstly R.59.06(1) requires the agreement of all parties. Secondly R.59.06(8) excludes the operation of the rule where a party has no solicitor in the proceeding. Baker & McKenzie has ceased to act for me as of December 1999 and I understand filed a discontinuance last year. I am advised that since the order is authenticated the Prothonotary cannot revoke it without an application to the Supreme Court. For good and proper reasons I do not consent to the order set out in the 'consent order'. There are still orders in existence against your client in this matter and it is highly improper for our client to purport that I am not affected and therefore that my consent under this rule is not required. Unless your client undertakes by 4.00 pm on 27 September 2001 to have the consent order revoked at his expense I will instruct solicitors to issue proceedings without further notice and this letter will be produced on the issue of costs. The application will be made under R.46.08. 'The Court may set aside or vary an order which affects a person where the application for the order - (a) was made on notice to that person, but he did not attend the hearing of the application; or (b) was not made on notice to that person.' Set out below is the extract from Williams which may assist you in the form of application to remedy this problem. [I 36.07.20] Exceptions to general rule - consent to set aside judgment. The court can act by consent of the parties to vary or set aside a judgment: Ivanhoe Gold Corp Ltd v Symonds [1906] HCA 71; (1906) 4 CLR 642 at 670; Re Melbourne Carnivals Pty Ltd (No. 2) [1926] VicLawRp 46; [1926] VLR 294; Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45; 28 FLR 195; Tolmie Nominees Pty Ltd v Dextrone Pty Ltd (SC(Vic), Coldrey J No. 5244/1993, 13 August 1993, unreported, BC9300749). The court may decline to vary or set aside a judgment by consent of the parties if a third party would suffer injury by the making of the order: Munster v Cox (1885) 10 App Cas 680 at 691; The Bellcairn (1885) 10 PD 161; Hammond v Schofield [1891] 1 QB 453; Permanent Trustee Co (Canberra) Ltd (Executor of Estate of Andrews) v Stocks & Holdings (Canberra) Pty Ltd above ACTR at 49; FLR at 199; Tolmie Nominees Pty Ltd v Dextrone Pty Ltd, supra. I will of course consent to the order being vacated and this letter can be produced to the Court for the purpose of evidencing my consent."

11 By letter dated 27 September 2001, the plaintiff's solicitors responded:

"The plaintiff will contest any attempt by you to have the consent order as to costs set aside. In this regard we direct your attention to a number of relevant issues: (1) On its face Rule 59.06 would not appear to prevent a judgment by consent between the only parties affected by that judgment. The judgment only related to the quantum of costs flowing from the earlier judgment in favour of the plaintiff and cannot impact on you because the litigation involving you is at an end save for your own costs claim against the plaintiff ... "

There the matter rested for some time. The thirdnamed defendant has deposed in her affidavit in support of this application that it was not until recently that she has had sufficient funds to make the application and, in any event, the judgments of Byrne and Warren JJ were both appealed to the Court of Appeal and the appeals were not determined until 24 April this year. The summons by which this application is made was filed a little over two weeks later on 13 June this year.

12 The application is made under Rule 46.08 on the basis that the thirdnamed defendant is a person affected by the order within the meaning of Rule 1.14. Rule 46.08 provides that:

"[I 46.08] Setting aside 46.08 The Court may set aside or vary an order which affects a person where the application for the order - (a) was made on notice to that person, but he did not attend the hearing of the application; or (b) was not made on notice to that person."

"[I 1.14] Exercise of power 1.14 (1) In exercising any power under these Rules the Court - (a) shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined; (b) may give any direction or impose any term or condition it thinks fit. (2) The Court may exercise any power under these Rules of its own motion or on the application of a party or of any person who has a sufficient interest."

13 The thirdnamed defendant has deposed in her affidavit in support of the application that she is affected because she is a beneficiary of the Prudent Trust and because if the consent order is allowed to stand, the $150,000 provided for in the order will be recoverable out of the assets of the Prudent Trust. She submits that it is unfair that those costs be paid without an opportunity to assess a bill prepared in taxable form and that so long as the consent order is allowed to stand, she has no opportunity to require that they be taxed. She contends moreover that there are reasons to suppose that the amount of $150,000 may be excessive. Although it does not sound an inordinate amount for costs in a proceeding of this kind, the plaintiff has disputed that he is liable to pay Geoffrey Willets or Geoffrey Willets & Associates Proprietary costs of $120,000 claimed by Willets or Willets & Associates for work done as solicitor for the plaintiff, and if that is so it is possible that the plaintiff's costs may be very much less than $150,000.

14 Damien John Nolan has also sworn an affidavit in support of the application in which he deposes to having been told by the liquidator's solicitor that the liquidator did not receive any costs consultant's advice before agreeing to the figure of $150,000 and that Mr Nolan's costs consultant, Marcia Hauser, is of the opinion that the sum of $150,000 appears high; given that there were only two defendants after a thirdnamed defendant was released from the proceeding in May 1998 and that the plaintiff was ordered to pay the costs of the secondnamed defendant.

15 John David White, also a costs consultant, has sworn in an affidavit on behalf of the plaintiff in opposition to the application, that in his opinion, the figure of $150,000 is reasonable. But in an affidavit in reply sworn by Mary Maureen Cloonan, also a costs consultant, on behalf of the secondnamed defendant, Ms Cloonan identifies a number of respects in which she considers that the estimate of $150,000 deposed to by Mr White is likely to be excessive.

16 Mr Harrison, who appears for the thirdnamed defendant, has submitted that the order made by the Prothonotary is plainly irregular inasmuch as it was not consented to by the thirdnamed defendant and thus was not consented to by all parties as required by Rule 59.06. It follows in his submission that it should be set aside ex debito justitiae. He contends in the alternative that if that were not so, the order should be set aside in the exercise of discretion, on the basis that the thirdnamed defendant is plainly a person affected and that it would be unjust and contrary to usual practice to enable costs to be paid out of a fund otherwise than by consent or consequent upon taxation.

17 Mr Murphy, who appears for the plaintiff, resists the application to set aside the order. He submits that since the thirdnamed defendant is not bound by the order, she has no standing to contest the order and, in any event, he says, the order is a judgment to which Rule 46.08 does not apply.

18 Mr Murphy also resists the suggestion that the order was irregularly entered. He contends that eo instante the secondnamed defendant being awarded judgment against the plaintiff, the secondnamed defendant ceased to be a party to the proceeding. As he would have it, her rights in the proceeding thereupon merged in the judgment and thus that her consent to the order was not required.

19 Mr Murphy contends in the alternative that even if the order were irregularly entered and must be set aside ex debito the court should make an order now under Rule 59.07 nunc pro tunc that the costs be fixed at $150,000, for otherwise interest will not begin to run on the costs until they are taxed and in his submission that would be unfair.

20 Mr Harrison replies that if the thirdnamed defendant does not have standing to make the application, Mr Nolan as trustee plainly does have standing and Mr Harrison moves that Mr Nolan be added as a party to the application if that be required.

21 It is convenient to deal first with the problem of whether Rule 46.08 is applicable, then with the issue of standing and then finally with the question of whether the order should be set aside.

22 In Delmo v Merrigal Pty Ltd[1], Murphy J held that Rule 46.08 applies only to interlocutory orders and that any application to set aside a judgment must be made under Rule 21.07 or under Rule 22.15 or Rule 49.02(2) where those rules are applicable.

23 I am not altogether sure that that is so, but assuming without deciding that it is correct, I do not consider that the order which purports to have been made under Rule 59.06 is to be conceived of as a judgment for the purposes of Rule 46.08.

24 The judgment in the proceeding was the judgment pronounced by Byrne J and although the order entered pursuant to Rule 59.06, if valid, would have the effect of informing so much of the judgment as relates to costs, I do not consider that it should be regarded as the judgment itself; any more than say the order which might be made by the Taxing Master under Rule 63.56(1) upon a taxation of the costs. In my opinion, an order of the kind which was purportedly made under Rule 59.06 is an order within the meaning of Rule 46.08.

25 Turning then to the question of standing, I consider that the order which was purportedly made under Rule 59.06 was one that affects the thirdnamed defendant within the meaning of Rule 46.08, for according to the usual and ordinary meaning of language.[2] An order affects a person if it has an effect upon them and although there may be limits beyond which it could be said that an effect is so limited or otherwise insignificant as not to count. That is not this case.

26 At least upon one view of the matter, the thirdnamed defendant was bound by the order because she was a party to the proceeding in which it was made[3] - and if that is so it really could not be doubted that she was affected by it. But even if that were not so, and I shall come in a moment to Mr Murphy's contention that the secondnamed defendant had ceased to be a party by the time the order was made, I am inclined to think that she would have sufficient interest within the meaning of Rule 1.14 to apply to set aside the order under Rule 46.08.

27 "Sufficient interest" in the sense in which it is used in Rule 1.14 is not confined to proprietary interests, although obviously a proprietary interest would be enough to constitute a sufficient interest within the meaning of the rule[4], it extends also, I think, to anything which by analogy with the law relating to standing in relation to public rights would constitute a sufficient special interest for declaratory and injunctive relief.[5]

28 As it happens, the thirdnamed defendant may have a proprietary interest, because she is a beneficiary of the Prudent Trust and because the order purportedly made under Rule 59.06 (as it informs the order made by Warren J) bears directly upon the trust fund. But even if she does not have a proprietary interest in the trust fund, for example, because it turns out upon further investigation that it is a discretionary trust[6], I think the thirdnamed defendant as a beneficiary of the trust would still be so closely affected by the order as to be regarded as having "sufficient interest" within the meaning of Rule 1.14.

29 There is of course the difficulty that her interest derives under the trust and that ordinarily it is the trustee of a trust and not the beneficiary that is the proper plaintiff in proceedings to protect and preserve trust property.[7] But that is a rule of practice which is adaptable according to the circumstances of the particular case and thus where a beneficiary is in truth the moving party and it is possible to deal with the controversy by enabling the trustee to be joined as a party, either as co-plaintiff or defendant, that will often be done.[8]

30 In this case it seems to me that any difficulties which might result from the thirdnamed defendant's position as a beneficiary of the trust can be overcome by allowing Mr Nolan to be joined to the application and amending the title of the process. Accordingly, in that way the orders finally to be made will be binding not only upon the parties to this proceeding but also upon the trust in the person of Mr Nolan.

31 Turning then to the question of whether the order made under Rule 59.06 ought be set aside, I do not think it can be doubted that it was irregularly entered. As the solicitors for the plaintiff were plainly aware when they wrote to Master Cain's secretary on 14 August 2001, an order cannot be made under Rule 59.06 unless all parties to the proceeding are agreed upon the order and unless the draft minute of order is signed by the solicitor on the record for each party. The thirdnamed defendant did not agree and the minute was not signed by her solicitor on the record.

32 No doubt it may be conceived that a party to a proceeding who receives or sustains a judgment that puts an end to their role in the proceeding does in some sense cease to be a party to the proceeding. In that respect the definition of "party" in s.3 of the Supreme Court Act 1986 is in some ways equivocal. But it is, I think, to be seen as a definition only in an inclusive sense designed to expand the ordinary meaning of the word, not confine it to categories of persons that are specifically mentioned, and according to ordinary conceptions a party to a proceeding includes any party on the record.[9] I see no reason to think that Rule 46.08 uses the word in any more limited sense.

33 I should perhaps say that it was suggested by Mr Murphy that one might read the words, "All parties to the proceeding," in Rule 46.08 as if they meant, "All parties to the proceeding that are to be bound or affected by the order to be made." But I consider that there are a number of reasons why that could not or should not be done. In the first place, it remains a strong thing to read into legislation, even delegated legislation, words which are not there.[10]

34 In the second place, if it had been intended that the rule have that meaning, I think it probable that the words used would have been similar to those adopted in Rule 59.07, namely: "The court may on the application of a party and if satisfied that any other party to be bound who is not in attendance consents ... make an order." Despite the limitations inherent in the expressio unius est exclusio alterius approach to statutory construction,[11] it is difficult, I think, to escape the conclusion that different words were used in Rules 59.06 and 59.07 because different results were really intended.

35 In the third place, if the question is approached as a matter of purposive construction,[12] it seems to me to be readily understandable that consent orders should be permitted to be made administratively when all parties consent, for the requirement of universal consent eschews the possibility of one or more parties being adversely affected by the order contrary to their wishes, and at the same time there is evident good sense in requiring that in other cases applications for consent orders should come before a judge or master so that he or she may determine whether other parties could be affected by the order and thus should first be heard.

36 Subject perhaps to Rule 2.03, an order that has been entered irregularly may be set aside ex debito justitiae, although of course not every irregularity will entitle a party affected to have the order set aside as a right. Ex facie the court's power under Rule 46.08 like the court's inherent jurisdiction to set aside interlocutory and other orders is unbridled, but as is said by the authors of Williams on Supreme Court Practice, the considerations which inform the exercise of the discretion are similar to those which apply to setting aside of judgments.

37 Judgments which are irregular ought not be on the records of the court and therefore if a judgment in default of appearance or pleading has been entered irregularly, it will be set aside ex debito justitiae.[13] Likewise I consider that where an order purporting to have been made under Rule 59.06 is irregular because it was made without the consent of all parties, it ought not be on the court's records and should be set ex debito justitiae.

38 So to say does not mean that any irregularity in an order made under Rule 59.06 must result in the order being set aside. Plainly, the court may disregard irregularities of a kind that are insignificant. Technical defects are an obvious example of the kind.[14]

39 But for the reasons which I have already expressed when considering the construction of Rule 59.06, I consider that universal consent is of the essence of an order made under that rule and that in its absence, an order purporting to be made in accordance with its terms is so fundamentally flawed that it should be set aside.

40 I have referred already to Rule 2.03. It directs that the court shall not set aside an order on the ground of a failure to which Rule 2.01 applies unless the application is made within reasonable time and before the applicant has taken any fresh step after becoming aware of irregularity. And in this case a great deal of time has passed by since the secondnamed defendant first discovered that the order has been made.

41 It is not suggested, however, that the thirdnamed defendant has taken any step in the proceeding since the order was made,[15] and as I have already recorded the secondnamed defendant has sworn in her affidavit in support of the application which is not impeached that she did not have the funds with which to make the application until very recently.

42 Given that the basis of Rule 2.03 is to avoid unfairness likely to result if a party aware of an irregularity nevertheless proceeds with litigation and then at some later date springs a surprise on the opposing party by seeking to rely on the seemingly waived irregularity, and given that the thirdnamed defendant made plain in her letter of 23 September 2001 that she opposed the order and would apply to have it set aside, I do not consider that the time which has elapsed should be regarded as unreasonable.

43 The only prejudice which is said to have resulted from the delay, apart from the passage of time, is that the plaintiff will be deprived of the interest which would otherwise have accrued due on the amount of the costs since the date on which the amount of the costs was fixed in the sum of $150,000. But inasmuch as the secondnamed defendant made clear from the outset that she was opposed to the order and wanted it set aside and that there is no suggestion, even less evidence, to the effect that the plaintiff was in some fashion induced later to believe that the secondnamed defendant had undergone a change of heart, I do not regard that prejudice as material. As I see it, the plaintiff was at all times on notice that the order was opposed and he took his chances.

44 I turn finally to Mr Murphy's contention that if the order made under Rule 59.06 is to be set aside, the court should now make an order nunc pro tunc under Rule 59.07 to the same effect as the original order.

45 I assume for the purposes of the exercise that it would be possible to make such an order if the circumstances were appropriate and that failure to comply with the requirements of Rule 59.07 could be dispensed with under Rule 2.04 and an order made now on the basis of Mr Murphy's oral application. But as a matter of principle, it seems to me that such an order ought not be made unless it is likely that it would have been made upon application under Rule 59.07 at the time of the original order. So far, however, from that being likely, I consider that it is most improbable.

46 To begin with, and while it may be that the liquidator of Merlaw Nominees Pty Ltd was prepared to agree to the order, there is no evidence that he gave any attention to the question of whether the amount agreed was reasonable and there is some evidence to suggest the contrary.

47 In the second place, one may exclude the possibility of self-interest driving the liquidator to achieve the best deal possible, because it is evident that he knew that the liability to which he was agreeing would be visited upon the trust fund and not upon him.

48 In the third place, although in some cases the court might be persuaded that a figure for costs should be fixed rather than subjecting a party to the rigours of taxation and to the expense which it may entail, the usual course is to require that costs be taxed - see Ford and Lee Principles of Laws of Trust in Australia at paragraph 14.040 - and I am inclined to think that practice would be adhered to in any case involving a significant amount unless at least there were cogent evidence that the agreed figure was no more than would be allowed upon taxation. As I say, that is not this case.

49 In the result, I am of the opinion that the order which purports to have been made under Rule 59.06 should be set aside and subject to anything which counsel may wish to say, I consider that the thirdnamed defendant should have her costs of the application.

50 In response to my tentative view that the plaintiff should pay the thirdnamed defendant's costs of this application, Mr Murphy has submitted that there ought be no order as to costs, or alternatively that an order should be structured which provides for the exigencies of any taxation that may subsequently occur, whatever results it may produce.

51 He submits in opposition to an order for costs that the application was bound to fail until Mr Nolan was made a party to the application. Further, he submits that Mr Nolan as secondnamed defendant has taken steps in the proceeding which, viewed objectively, appear to have constituted a waiver of any suggestion that the order made pursuant to Rule 59.06 was irregular and should be set aside.

52 Mr Murphy relies upon an application which was made to Pagone J for payment out from the funds in court of moneys to the thirdnamed defendant in which Mr Nolan swore an affidavit in support of her application, and also upon a letter of 6 August 2003 written by the plaintiff's solicitors to the thirdnamed defendant's solicitors headed "Without prejudice" save as to costs.

53 I do not accept that the thirdnamed defendant's application would fail but for the joinder of the secondnamed defendant. I consider that it is desirable that he be joined as a party to the application, whether as a co-applicant or a respondent is irrelevant, for the sake of conformity: in order to ensure that the trust is bound by the orders I propose to make as much as the thirdnamed defendant. But for reasons I have already expressed, I consider that the thirdnamed defendant derives standing to make the application on the basis that she is a party to the proceeding and thus bound by the order made under Rule 59.06 so long as it stands, and also on the basis that being a party she is affected by the order within the meaning of Rule 1.14. Provision for joinder of the secondnamed defendant is really out of an abundance of caution and as I say in the end, for the purposes of conformity.

54 Secondly, and even if it were necessary to join a secondnamed defendant in order to render the application competent I am not persuaded that the secondnamed defendant took any steps subsequent to the making of the order under Rule 59.06 which, when judged according to the authorities that bear upon such matters, should properly be construed as waiving an entitlement later to apply to have the orders set aside. After all, the test is not simply whether a party takes a step in the proceeding. It is whether the party takes a step which, as a matter of objective analysis, should be seen as inconsistent with a latterly asserted entitlement to have the orders set aside. In short, is one able to say of the step to which attention is directed that it necessarily assumes the efficacy of the order later sought to be set aside, or is the position really, as I think it to be in this case, that it has been conceded the order has been made (without saying anything as to its effectiveness or as to whether it will be allowed to continue to stand).

55 Whether one looks at the application that was made to Pagone J or to any of the others to which attention might have been directed, I do not see anything done which was inconsistent with a continuing entitlement to apply to set aside the order which was made under Rule 59.06.

56 Thirdly, although I recognise the force of the submissions made by Mr Murphy that there is an appearance of unfairness about the possibility that the plaintiff may be deprived of interest or other return on the costs which ultimately he may be held entitled to recover, that seems to me to be the outcome of the plaintiff's own determination to persist in the view that the order which purported to have been made under Rule 59.06 was efficacious, notwithstanding the defects identified in the correspondence sent by the thirdnamed defendant to the plaintiff's solicitors.

57 Finally, although I suppose that it would be possible to frame an order that the costs of the application be determined by the Taxing Master having regard to whatever might be the outcome of the taxation, and so in effect if the taxation results in an amount which is equal to or greater than the sum of $150,000 than the costs specified in the order under 59.06, the point remains that the thirdnamed defendant has the right as matters stand to have the plaintiff's costs subjected to taxation before those costs are visited upon the assets of the Prudent Trust. That is not something that she needs to win or justify, it is the consequence of the judgment which was given by Byrne J. In those circumstances, I am not persuaded that I should depart from the ordinary practice in an application of this kind, that the costs should follow the event. There should be an order that the plaintiff pay the thirdnamed defendant's costs of the application.

58 HIS HONOUR: Although I shall leave to counsel the task of bringing into court a minute of order at a time convenient to them, some day next week, the orders I propose are that Damien John Nolan the secondnamed defendant, not in this proceeding, thank you.

59 MR HARRISON: Not in this proceeding, Your Honour.

60 HIS HONOUR: Damien John Nolan being the secondnamed defendant in Proceeding 5565 of 2000 be added as a respondent to the application made by the thirdnamed defendant's summons - you gave me the date before, Mr Murphy?

62 HIS HONOUR: Thank you - of 24 June 2003. Secondly - - -

63 MR HARRISON: In his capacity, Your Honour, as the trustee.

64 HIS HONOUR: - - - in his capacity as trustee of the Prudent Trust. Secondly, that the order fourthly made by the Prothonotary pursuant to Rule 59.06 on 14 August 2001 be set aside pursuant to Rule 46.08. Thirdly, that the plaintiff pay the thirdnamed defendant's costs of the application. Fourthly, that there be no other order as to costs.

65 MR HARRISON: Your Honour, does that include the reserved costs?

66 HIS HONOUR: The costs will include reserved costs. Gentlemen, that doesn't have to be brought into court, if you could draft up something upon which you are agreed, at least inform, (indistinct) in substance and have it submitted to my Associate, I will make it.

68 HIS HONOUR: I am obliged to counsel for their assistance.

[2] See Amalgamated Society of Engineers v Adelaide Steamship Company Ltd [1920] HCA 54; [1920] 28 CLR 129 pp.161-162, Pearce & Geddes, Statutory Interpretation, 5th edition paragraph.2.3.

[3] Sandtara Pty Ltd v Abigroup (1997) 42 NSWLR 5 at pp.8-9 - Sylvia as liquidator of UFI Pools & Spas Manufacturing Pty Ltd in liquidation Receiver and Manager appointed v Commissioner of Taxation [2001] NSWSC at paragraph 4.

[4] See Delmo v Merrigal Pty Ltd, above.

[5] See and compare Bateman's Bay v Aboriginal Quorum [1998] HCA 49; (1998) 194 CLR 247 at pp.267-8 and 280-288; and re McBain ex parte v Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at 422 esp. at paragraph 109.

[6] See Gartside v Inland Revenue Commissioners [1967] UKHL 6; [1968] AC 553; Manassa v R [2002] NSWCCA 27; (2002) 167 FLR 44; [2002] NSWCA at paragraph 27.

[7] See Sharpe v Santano Railway Company [1873] LR Ch. App. 597 at pp.609-10.

[8] See Jacobs Law of Trusts in Australia, 6th Edition at paragraph 2303.

[9] See R v Murray & Cormie [1916] HCA 58; [1916] 22 CLR 437 at 469.

[10] See Thompson v Gould & Co [1910] AC 409 at p.420_;_ Parramatta City Council v Brickworks Ltd [1995] HCA 5; [1972] 182 CLR 1 at p.12; compare Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423; and Federal Commissioner of Taxation v Ryan [2000] HCA 4; (2000) 201 CLR 109 at p.145, [82] per Kirby J in dissentiente.

[11] See, for example, R v Australian Broadcasting Tribunal ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at p.50; and Ainsworth v Criminal Justice Commission [1998] HCA 28; (1998) 194 CLR 355 at p.381.

[12] See Project Blue Sky v A.B.A [1998] HCA 28; (1998) 194 CLR 355 at p.381.

[13] See R.T. Co Pty Ltd v Minister for the Interior [1957] HCA 39; [1957] 98 CLR 168 at p.170; Kertesz v Kestrel [1966] VicRp 63; [1966] VR 453 and Williams, paragraph 21.07.65.

[14] See Australian New Zealand Banking Group Ltd v Kostovski, Butterworths cases 9703266 and Commonwealth Bank of Australia v Buffepp (1993) 114 ALR 245.

[15] Cf. Rust v Barnes [1982] NSWLR 726, 741; and Lindgrain v Lindgrain [1956] VicLawRp 34; [1956] VLR 215 at 220.

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Cases Cited (10)