DSE (Holdings) Pty Ltd v InterTAN Inc

Counsel for the Respondents in the Interlocutory Application: Mr S Cooper

Solicitor for the Respondents in the Interlocutory Application: Russells Lawyers

ORDERS QUD 944 of 2016 IN THE MATTER OF EQUITITRUST LIMITED ACN 061 383 944 (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) BLAIR ALEXANDER PLEASH AND RICHARD ALBARRAN, AS LIQUIDATORS OF EQUITITRUST LIMITED ACN 061 383 944 (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) Applicant

between: DAVID ROBERT TUCKER

AND: BLAIR ALEXANDER PLEASH AND RICHARD ALBARRAN, AS LIQUIDATORS OF EQUITITRUST LIMITED ACN 061 383 944 (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) Respondents

JUDGE: REEVES J DATE OF ORDER: 21 DECEMBER 2017

1. There be no order for costs of the interlocutory application filed on 23 June 2017, amended on 4 July 2017 and further amended on 5 July 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 On the ground that he was substantially successful, Mr Tucker has sought an order for the costs of the interlocutory applications he filed on 23 June 2017, amended on 4 July 2017 and further amended on 5 July 2017. The Liquidators have responded to that application with their own application for 75% of the costs of the same two applications on the same ground, namely that they, and not Mr Tucker, were substantially successful. Both these claims are partly correct and partly incorrect. 2 Mr Tucker's two applications were both directed to an examination that was being conducted under Part 5.9 of the Corporations Act 2001 (Cth) (the Act) with respect to the affairs of Equititrust Ltd (in liquidation) (Receivers and Managers appointed). They proceeded in two stages. The first stage comprised a hearing which was held on 5 July 2017. The Liquidators were completely successful in that stage upon the issues raised by paragraphs 1, 1(a), 4, 5 and 6 of the two applications (see Pleash, in the matter of Equititrust Limited (In Liquidation) (Receivers and Managers Appointed) (No 2) [2017] FCA 758). The second stage comprised a hearing which was held on 11 July 2017. That stage resulted in a decision in which Mr Tucker was successful to a significant extent (see Pleash, in the matter of Equititrust Limited (In Liquidation) (Receivers and Managers Appointed) (No 3) [2017] FCA 1074 (Pleash No 3)). That is, he only failed on the three quite confined issues discussed at [29], [30] and [34] of Pleash No 3. 3 There is no express power in Part 5.9 of the Act to award the costs of an interlocutory application made with respect to an examination conducted under that Part, cf s 597B, which provides a power to order an applicant to pay an examinee's costs where the examination is found to have been obtained without reasonable cause. Nonetheless, the Court has a broad general power to award costs in all proceedings before it under s 43 of the Federal Court of Australia Act 1976 (Cth): see, for example, DSE (Holdings) Pty Ltd v InterTAN Inc (2004) 51 ACSR 555; [2004] FCA 1251 per Allsop J (as he then was). 4 The only presently relevant constraint on that discretion is that it must be exercised judicially (see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229; [2001] FCA 1865 at 234 (per Black CJ and French J). The usual order is that costs should follow the event (see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67] per McHugh J in dissent, but not on this issue). However, where there are several issues in dispute in a proceeding and the successful party has failed on some issues, it may be appropriate to make an apportionment of costs (see Wu v Li [2015] FCAFC 109 at [56] per Foster, Davies and Rangiah JJ). 5 Relying on the latter principle, in the parties' submissions on costs it was contended that the costs of Mr Tucker's two applications should be apportioned, in part, based on the concessions made by each party. I reject that approach in this matter. I do so because I do not consider it is practical or sensible to attempt to determine who made what concessions and why, nor what effect those concessions had in terms of reducing the costs of the two applications. Instead, I consider I should proceed on the basis that both sides made appropriate concessions to approximately the same extent. However, while I reject an apportionment of costs on that basis, I consider there is an appropriate basis upon which the costs of the two applications could be apportioned, as follows. 6 Since the Liquidators were substantially successful on the first stage of the applications, I consider they would be entitled to their costs of and incidental to that stage, including the hearing conducted on 5 July 2017 and the issues I determined at that hearing (summarised at [2] above). Then, since Mr Tucker was significantly successful in the second stage of his applications, I consider he would be entitled to his costs of and incidental to that stage, including the hearing on 11 July 2017. 7 However, if I were to make two such costs orders, I consider that they will ultimately prove to be of approximately the same amount and therefore offset each other. That is so because both of the hearings took approximately a full day and both involved issues of approximately equal importance. While Mr Tucker was unsuccessful on some issues in Pleash No 3, they were, in my view, quite confined and were not likely to significantly affect the quantum of the costs of that day's hearing. Furthermore, if I were to make two such costs orders, the assessment of those costs will almost certainly result in the expenditure of still further costs in this proceeding. Taking into account all these factors and applying a broad brush approach, I consider the fairest and most efficient outcome is that neither party should be entitled to any order for costs. I will therefore order that there be no order for costs of the interlocutory applications filed on 23 June 2017 and 4 July 2017. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.