Jackson v Salisbury

REASONS FOR DECISION 1 In this matter I have given judgment today dismissing the application. The respondent and the intervener initially both sought orders for costs in their favour. In the course of submissions, as it appeared that the interests of the respondent and of the intervener in practical terms corresponded, it was accepted in general that one set of costs only should be sought by the respondent and the intervener together against the applicant. 2 Due to the fact that the arrangement between the respondent and the intervener was that the intervener did a significant part of the preparation for the hearing to pursue their joint interests in this litigation, it has been submitted that the costs ordered should be in favour of the intervener rather than the respondent or, alternatively, that the costs order should somehow reflect the fact that the work of the intervener was work which would otherwise have been done by the respondent had the parties, that is the respondent and the intervener, been jointly represented. In practical terms, as I perceive it, that would mean that the costs order which is sought would be that the applicant pay to the respondent costs of the application to be taxed, and the applicant pay to the intervener certain additional costs which the respondent would otherwise have incurred. As best I can see in the short time available, the costs of the intervener, which would then be the subject of a separate order, would be the costs of communicating with, and preparing the affidavits of, and arranging the attendance of, the witnesses Norma Margaret Williams and David Wayne Haslam. 3 The applicant resists any joint order for costs and contends that, if any order for costs is to be made, it should be made against the respondent only. In addition, the applicant opposes any order for costs, although he is an unsuccessful party for two reasons. 4 The first is that the proceedings were first instituted on the basis of a statement made by the respondent to the applicant at an interview on 10 June 1998 concerning the nature of the 1979 transaction. I have found that the respondent told the applicant at that time that the 1979 transaction was a loan transaction rather than a sale transaction. I have also found that subsequently, on 5 March 1999, at an examination under s 81 of the Bankruptcy Act 1966 (Cth), the respondent described the 1979 transaction in terms consistent with the findings which I have made about the nature of that transaction. That examination took place well before these proceedings were instituted. In those circumstances I do not think it is appropriate to refuse an order for costs in favour of a successful party on the basis that the applicant had no reason to know what was to be the response to his allegation that the 1979 transaction was a loan transaction when proceedings were instituted. The applicant instituted these proceedings in the knowledge that the respondent said that the information he provided on 10 June 1998 was incorrect. 5 The second reason that the applicant opposes an order for costs is that the affidavit of Norma Margaret Williams was filed beyond the time fixed by a directions hearing, and also was in terms which did not clearly indicate that she had seen the consent granted by the Minister of Lands to the 1979 transaction. I have dealt with that evidence in par 23 of the reasons for judgment just published. It is sufficient to note that those reasons reject the contention that her affidavit did not provide a sufficient indication to the applicant that she was able to give evidence as to the existence of the Minister's consent to the 1979 transaction. As her affidavit was filed some two months or so before the hearing of this matter ultimately took place, I am also not disposed to decline the usual order for costs in favour of a successful party simply because her affidavit was filed outside the time fixed by the directions hearing. 6 In determining the appropriate order for costs, I have also borne in mind that there were other issues ventilated by the applicant on this application, including in particular issues concerning the nature of the 1986 transaction, in which the applicant was unsuccessful. 7 In my judgment the respondent is entitled to an order for costs of the proceedings in the usual terms. 8 On the basis of the information provided to me in the course of the directions hearings and in the process of endeavouring to fix a time for the hearing of this matter, it was clearly a commonly understood position that work was being done both by the applicant and by the respondents in an endeavour to ascertain whether the Minister had consented to the 1979 transaction. The fixing of a hearing date was deferred from time to time whilst those investigations were undertaken. It therefore seems to me that it was clearly understood by all parties that those investigations would be undertaken. In those circumstances I have no doubt that the investigations should comprise part of the costs recoverable in this proceeding. As, by arrangement between the respondent and the intervener, that work was done by the intervener, in my judgment it is appropriate for those costs also to be paid by the applicant to the intervener. I therefore make the following orders as to costs: 1. The applicant pay to the respondent his costs of the application to be taxed. 2. The applicant pay to the intervener costs of communicating with and preparing the affidavits of proposed evidence of and arranging the attendance of the witnesses Norma Margaret Williams and David Wayne Haslam, to the extent that that work does not involve any duplication of work carried out by the respondent and his solicitors, but limited to those costs. 9 The intervener is otherwise to receive no costs of its participation in the preparation for trial of this matter or in the hearing of the application.