Maxim's Travel Pty Limited [ACN 002 906 792] v De Poortere Investments Pty Ltd

Parties' submissions on 5 August 2011 Motion 13The applicant's submissions repeated in large measure the grounds and reasons relied upon in the 5 August 2011 Motion. In essence, the applicant contended that the factual matrix underlying both sets of proceedings was identical, and although this Court did not have before it the evidence to support the contention, it may be inferred from a comparison of the contents of the Summons under s 106 and the applicant's cross-claim filed in the Supreme Court proceedings. It was also contended that because of the "remarkable similarity" between the two documents that the same witnesses and the same documents will be received into evidence in both sets of proceedings. 14On the issue of this Court's jurisdiction, Maxim's, in written submissions, sought to emphasise what it perceived to be a contradiction between DPI's approach on the one hand in encouraging Maxim's to continue the s 106 proceedings by consenting to a stay of the Supreme Court proceedings and on the other hand asserting this Court's lack of jurisdiction at the last minute, "so as to encourage the applicant to then seek to argue its claims not in this Court but rather in the Supreme Court ... in order to avoid factual or issue estoppels". In oral submissions, Maxim's referred to "a general rule" in relation to costs following a discontinuance of proceedings, but added that costs are discretionary and there are exceptions to the general rule which have been set out in Maxim's written submissions. The exception emphasised in oral submissions concerned DPI's "tactical course", or, its conduct in these proceedings which the Court understood to be a reference to the belated jurisdictional points taken by the respondent in relation to which the circumstances, according to Maxim's, cannot be investigated by it until the Supreme Court proceedings are finally determined. The reason why the circumstances cannot be investigated at this stage is said to be because of the existence, or possible existence, of privileged or confidential matters which may bear upon the issue. 15DPI submitted that Maxim's application to stay the costs proceedings was misconceived on a number of bases. First, there are two parties to the present proceedings. There are four parties to the Supreme Court proceedings. Each side has a right to produce such evidence as it considers fit on behalf of each party, and to rely on different aspects of that evidence, or follow different lines of enquiry in those proceedings. Secondly, the issues in this Court and in the Supreme Court are not the same. The s 106 application relied upon alleged unfairness of an impugned contract which is the consultancy agreement. The issues in the Supreme Court are the construction of a share sale agreement to which the consultancy agreement is a schedule and a claim for rectification brought by Maxim's and Mr Goddard. On the assumption that there will be areas of commonality, DPI submits that the appropriate and just course is that there should be an order for costs made by this Court in its favour. Thirdly, following on from the second point, if, at the conclusion of the Supreme Court proceedings DPI should obtain a costs order in its favour, the assessor in those proceedings could have regard to such common costs, if any, that had been involved in both proceedings. 16In addition, DPI submitted that Maxim's conduct in the proceedings on 18 April 2011 was such that DPI was entitled to expect that Maxim's accepted that costs would be determined by the Court in the usual manner. This is because during those proceedings, counsel for both parties sought to reserve costs with no suggestion of any stay of the issue. 17On the issue of privileged or confidential matters (the existence of which Maxim's asserts it is precluded from investigating until after the Supreme Court proceedings are determined), DPI submitted that any material filed in those proceedings which is the subject of privilege or implied undertakings, may require argument on the question of privilege and/or application for release of any implied undertakings. This is a matter for Maxim's which may be dealt with if the occasion arises in this Court at any time. It is in no way dependant upon the conclusion of the Supreme Court proceedings. If, on the other hand, as appears to be suggested by Maxim's, any confidential material may disclose matters going to an adverse course of conduct engaged in by DPI, such as it seeking to take some advantage, or concealing material or information, those are serious allegations which the interests of justice require be ventilated as soon as possible. DPI denies any such allegations and if there is an issue about them, the matter should be brought forward, and dealt with by this Court. 18As for the jurisdictional issue, DPI submitted first that the reason advanced by Maxim's for discontinuing the proceedings (which was to avoid factual and issue estoppels) was without merit because such estoppels will always have been potentially likely if the Supreme Court proceedings were heard subsequently to the s 106 proceedings. Secondly, DPI emphasised that Maxim's, in bringing its application under s 106 of the Act, must have thought it had jurisdiction. The opposing party is entitled to bring a jurisdictional argument. It has done so not as a preliminary point to be argued but as an issue to be heard during the hearing of the substantive proceedings. Faced with the late notification of the challenge to jurisdiction, Maxim's could have sought an adjournment if it needed more evidence. No such adjournment in those terms was sought.

Consideration 19For reasons which will be developed below, the Court is of the view that Maxim's application to stay the costs proceedings must fail. 20It appeared to be common ground, not surprisingly, that not all the issues to be determined in both sets of proceedings are (or will be) the same. Maxim's, however, relies upon an identical factual matrix underpinning both sets of proceedings in support of its submission that the Supreme Court proceedings should be heard before the costs application. Assuming this to be the case (and there is no evidence upon which the proposition may be based), I do not see that this argument is particularly persuasive. Maxim's maintains that it discontinued the proceedings to avoid potential factual and issue estoppels. Issue estoppels would have arisen if the proceedings had not been discontinued. This would have occurred at least in the way described by Mason P (as he then was) in Tszyu v Fightvision Pty Ltd [2001] NSWCA 103; (2001) 104 IR 225 at [59] where his Honour said: [59] The contract formed upon the due exercise of the option in 1995 was the basis upon which the issue of breach was addressed and concluded in the contract proceedings and the yardstick against which damages were calculated (see especially 47 NSWLR at 491-6, 497). Conversely, the award of damages was the enforcement of a secondary obligation necessarily based upon the primary obligation of the contractual terms cf Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 848-9). For that contract now to be declared void or varied in its terms (an essential precursor to relief pursuant to s106(5) whether against Fightvision or those standing behind it) would be to contradict the very basis upon which the judgment stands, together with issues necessarily decided by that judgment. Cf also Caird v Moss (1886) 33 Ch D 22. Viewed in this way, the continued prosecution of the industrial proceedings would run smack into the principles of issue estoppel and for that reason their continuation was properly held to be an abuse of process. 21No issue estoppels arise in relation to the discontinuance of the substantive proceedings under s 106 because there has been no adjudication on the merits. With regard to the outstanding matter of costs, estoppels may or may not arise. If they were to arise, it would not preclude this Court from dealing with an application for costs (in the absence of any good reason to do otherwise) following the discontinuance of the proceedings with the issue of costs being the sole surviving issue. 22An order for costs following on from a discontinuance of proceedings by the applicant is governed by the default provisions in Rule 42.19 of the Uniform Civil Procedure Rules 2005 (UCPR) (for the application of the those Rules to this Court see s 18A of the Civil Procedure Regulation 2005). Rule 42.19 provides, relevantly: (1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1. (2) Unless the court orders otherwise or the notice referred to in rule 12.1(2) otherwise provides, the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued. ... 23The Rule was considered in Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32. Hodgson JA at [53] and [54] of the judgment commented: [53] It has been said that UCPR 42.19 does not give rise to a presumption that costs will be ordered against the discontinuing party: Fordyce v Fordham [2006] NSWCA 274; (2006) 67 NSWLR 497; Foukkare v Angreb Pty Limited [2006] NSWCA 335 at [65]. [54] However, like UCPR 42.20, UCPR 42.19 states what the order for costs is to be unless there is a discretionary decision to order otherwise: Australiawide Airlines Limited v Aspirion Pty Limited [2006] NSWCA 365 at [53]. This means there is an onus on the discontinuing party to make an application in respect of costs if it does not propose to pay the costs of the other parties: Foukkare at [65]. In my opinion, it also means that there must be "some sound positive ground or good reason for departing from the ordinary course": Australiawide Airlines at [54]. 24As DPI submitted in its written submissions, the onus is on Maxim's as the discontinuing party to make its own application for costs if it does not propose to pay DPI's costs. 25Returning to the issues between the parties under consideration, the Court agrees with DPI's submission that when Maxim's filed its Summons for Relief it must have done so on the basis of a belief that the Court had jurisdiction to hear and determine the application. Whether DPI adopted some "tactical course" with regard to its belated challenge to the Court's jurisdiction is a matter which may be explored, if it becomes relevant, on the costs application. This is the basis upon which the Court understands the issue may be raised on the costs application. 26Also relevant to the Court's consideration is that while the only remaining issue for determination in these proceedings is costs, the Supreme Court proceedings, which are currently stayed, are in the early stages. The hearing dates have yet to be set down. The proceedings in this Court were commenced first in time. In addition, as earlier noted, there are two additional parties to the Supreme Court proceedings and there is no guarantee that the witnesses and the evidence to be relied upon on a costs application heard in this Court would be duplicated in the Supreme Court proceedings. Any commonality may be dealt with by an assessor at the conclusion of the Supreme Court proceedings by disallowing any common costs as have been allowed and recovered in these proceedings. 27The factors in favour of proceeding with DPI's costs application, and dismissing Maxim's 5 August 2011 Motion, far outweigh any countervailing factors, if indeed there are any, or any that have been properly identified so that the Court is in a position to give such factors due consideration. Maxim's had originally intended that the s 106 proceedings, including any issues as to costs, should be heard before the Supreme Court proceedings. It abandoned that intention only when DPI signalled its intention to challenge this Court's jurisdiction. Maxim's has failed to advance any good reason why this one event, which caused it to adopt a contrary position, should persuade the Court on balance to stay the outstanding matter of costs. 28Accordingly, the Court makes the following orders: (1) Notice of Motion filed by Maxim's Travel Pty Limited on 5 August 2011 is dismissed. (2) Costs of the Motion are reserved. (3) Notice of Motion filed by De Poortere Investments Pty Ltd on 7 July 2011 is set down for a directions hearing on Friday, 16 December 2011 at 9.30am.

Amendments 30 November 2011 - Added following legal representative: "with Mr TJ Dixon, of counsel" Amended paragraphs: Coversheet, counsel 07 December 2011 - "Thursday" should read "Friday" Amended paragraphs: 28(3) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 December 2011