Pacific Acceptance Corporation Ltd v Forsyth [1998] FCA 545 | Case summary

REASONS FOR DECISION Pursuant to a notice of motion dated 11 August 1997, the second, third, fourth and eighth respondents ("the respondents") have sought an order that the first applicant provide security for their costs of this proceeding. Pursuant to a notice of motion dated 23 April 1998, the respondents have sought orders that the applicants pay their costs of and incidental to certain interlocutory hearings before me, and further orders that such costs, together with certain costs payable pursuant to an order of Whitlam J made on 11 September 1997, be payable forthwith. I turn first to the application for security for costs. Section 1335(1) of the Corporations Law provides as follows: "Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given." It is conceded that the first applicant is insolvent. I am satisfied, on the basis of this concession, that there is reason to believe that the first applicant will be unable to pay the costs of the respondents if they should be successful in their defence of this proceeding. The condition precedent to the exercise of the power given to the Court by s 1335(1) of the Corporations Law is thus satisfied. The Court is also empowered by s 56 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") to order an applicant in a proceeding in the Court to give security for the payment of costs that may be awarded against it. The power granted by s 56 of the Federal Court Act is not conditioned by a requirement that it should appear that the party against whom the order is sought will be unable to pay any costs order made against it. This factor aside, the authorities do not suggest that the matters which the Court will take into account in determining whether or not to make such an order for security for costs against a corporate applicant vary, depending upon which source of power is relied upon. It is well accepted that the rationale behind s 1335(1) of the Corporations Law, and its predecessors, is that the individuals who stand behind a corporation should not be able to enjoy the chance of benefiting from litigation brought in the name of a corporation which might not be able to meet any order for costs made against it, without themselves being at risk of being required to satisfy, in whole or part, the costs of a successful respondent (Pacific Acceptance Corporation Ltd v Forsyth (No 2) [1967] 2 NSWR 402 at 407; Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523 at 532 (FC); Omega Data Furniture Pty Ltd v Email Furniture Ltd (Lindgren J, 22 August 1995, unreported)). In this case it is not in dispute that the third and fourth applicants are shareholders and directors of the first applicant. The third applicant owns 35% of the issued shares of the first applicant and the fourth applicant owns 50% of such shares. The eighth respondent is also a shareholder of the first applicant, owning 10% of the issued shares. One Malcolm Lawrence Chin, who is not a party to this proceeding, owns the remaining 5% of the issued shares of the first applicant. He has sworn an affidavit in which he deposes to having limited assets, severely limited income and no participation in the business of the first applicant. He was not sought to be cross-examined. I conclude that, in reality, the third and fourth applicants are the individuals who stand behind the first applicant so far as this proceeding is concerned. Although, as Ms Dowling, counsel for the respondents, has pointed out, there is reason to doubt that the further amended statement of claim ("the statement of claim") discloses a valid cause of action in either the third or fourth applicants, the relief sought by the statement of claim is claimed by all applicants. All of the applicants are, of course, represented by the same solicitor and have to date appeared by the same counsel. That is, there will presumably be complete overlap in the cases of all applicants both as to issues and evidence. The one costs order may be expected to be made against all of them. The authorities show that this is an important matter so far as the application for security for costs is concerned. In Harpur v Ariadne Australia Ltd at 531-532, Connolly J, with whom the Chief Justice and Demack J agreed, reviewed the authorities on the question of the ordering of security for costs where there is more than one plaintiff. His Honour stated: "…what is the rule where there is more than one plaintiff? In such a case, all plaintiffs suing in the same interest and by the same solicitors and counsel, there is but one set of costs. If the defendants have an opponent who is worth powder and shot they have as much as any litigant is fairly entitled to. …The "two plaintiff" cases start with the situation in which one is out of the jurisdiction. Prima facie he ought to be ordered to provide security but his co-plaintiff is within the jurisdiction. In such a case it was considered that there was no ground for ordering security. See Sykes v Sykes (1869) LR 4 CP 645 at p 648 per Byles J and Montague Smith J. This principle was held to apply even where the plaintiff within the jurisdiction was insolvent. I take the underlying reason to be that the defendant was really in no worse position than if he had been sued by a single plaintiff resident within the jurisdiction and insolvent. As Brett J remarked at p 650, the cases show that, unless there is ground for making an order for security against all the plaintiffs, it cannot be made against any. … The mischief at which the provision [ie s 533(1) of the Companies (Queensland) Code] is aimed is obvious. An individual who conducts his business affairs by medium of a corporation without assets would otherwise be in a position to expose his opponent to a massive bill of costs without hazarding his own assets. … If … he is already available for whatever he is worth, the object of the legislation is seen to be satisfied." There are, in truth, no rules governing the Court's exercise of discretion concerning security for costs, other than the rule that such discretion is to be exercised judicially. However, as more recent authorities show, the factors considered by Connolly J in Harpur v Ariadne Australia Ltd may be important matters to be taken into account in the exercise of the Court's discretion. Drangold Pty Ltd v Woody Enterprises Pty Ltd (Drummond J, 13 December 1991, unreported) was a case in which security for costs was sought only from a corporate applicant. Drummond J said: "The principles to be applied in deciding whether to grant such relief are well established. Relief, whether it is regarded as provided for by The Corporations Law or by The Federal Court of Australia Act, is discretionary. It follows that the discretion is not to be fettered by mechanical rules, such as a rule contended for by the respondent which would deny security where an insolvent company sues with a natural person, but only where they are suing in the same interest. Where the circumstances are such that security would be ordered against the company if suing alone, the critical consideration is the degree of overlap as to both issues and evidence between the respective applicant's claims. If there is very limited overlap, so that the respondent will incur substantial costs in meeting the company's claims which it will have no entitlement to recover from the natural person should his action against that respondent also fail, then, in the absence of other relevant considerations, a proper exercise of discretion would generally require security to be provided by the company: cf. John Bishop (Caterers) Ltd. & Anor. v National Union Bank Ltd. & Ors. (1973) 1 All ER 707. Where, however, there is a very substantial degree of overlap between the two claims, then because the respondent has a natural person as applicant to whom he can look for payment of substantially the whole of the costs he is likely to incur if he successfully defends both sets of claims, a proper exercise of the discretion would generally result in no order for security being made against the company. Cf. Harpur v Ariadne, supra, at 532." See also Stack v Brisbane City Council (Drummond J, 12 December 1996, unreported). However, as Ormiston J pointed out in Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621,the artificial joinder of individuals will not be permitted to detract from the intended purpose of the provisions concerning security for costs. All relevant facts and circumstances are to be taken into account in the exercise of the wide statutory discretion to order security for costs. In this case it does not appear that the third and fourth applicants have significant assets. However, it has not been suggested that they have been artificially joined as applicants to protect the first applicant from an order for security for costs. Such assets as they have will be at risk if an order for costs should be made against the applicants. The assets of the third and fourth applicants are not sufficient to enable them to provide realistic security for the respondents' costs. It seems plain that the eighth respondent would not provide any funds to assist the first applicant to meet an order for security for costs. The only other shareholder of the first applicant appears not to have the means to do so. This is a case, I conclude, where an order that the first applicant provide security for costs in any realistic amount would have the consequence of stifling the litigation. The statement of claim, to which no defence has yet been filed, alleges breaches of contract, breaches of statutory obligations under the Corporations Law and breaches of copyright. At this early stage of the proceeding it is not possible to reach a view as to the strength of the allegations made in the statement of claim. However, on their face they are not vexatious and I conclude that it is not desirable that the applicants be shut out from pursuing them. The application for an order that the first applicant provide security for costs will be dismissed. In reaching this decision, I have placed considerable weight on the fact that those who principally stand behind the first applicant in this proceeding are themselves applicants in the proceeding. As mentioned above, it is far from clear that either of the third or fourth applicants is a necessary party to the proceeding. I will reserve liberty to the respondents to press again their application for security for costs should either or both of the third and fourth applicants cease to be applicants in this proceeding, or if any step should be taken which might result in their liability for costs being other than conterminous with that of the first applicant. I turn to the application for orders for costs and for orders that costs be payable forthwith. The applicants, understandably in the circumstances, do not oppose the making of orders which give the respondents their costs resulting from the applicants' amendments to their statement of claim. The applicants do, however, oppose any order that such costs be paid forthwith. The original application and statement of claim in this matter were filed and served on the respondents on 25 June 1997. The history of the matter thereafter is as follows. On 20 July 1997 the respondents made an extensive request for particulars of the original statement of claim. On 12 August 1997 the respondents filed and served a notice of motion by which orders were sought striking out the original statement of claim and for security for costs. On 15 August 1997 the respondents filed and served a further notice of motion seeking relief concerning certain subpoenas and other matters. On 18 August 1997 the applicants responded to the respondents' request of 20 July 1997 for particulars of the original statement of claim. On 28 August 1997 the respondents requested further and better particulars. On 4 September 1997 the applicants filed and served an amended statement of claim ("the second statement of claim"). On 11 September 1997, the respondents' notices of motion came on for hearing before Whitlam J. The applicants withdrew the second statement of claim. His Honour made the following orders: "(1) The applicants have leave to file and serve a further amended statement of claim by 9 October 1997. Stand the matter over for further directions at 9.30 am on 16 October 1997. (2) Order that the applicants pay the 2nd, 3rd, 4th and 8th respondents' costs of the motion listed for hearing today. The respondents are at liberty to tax their costs forthwith but not at liberty to enforce that order. (3) Reserve the question of the 7th respondent's costs of today." On 9 October 1997 the applicants filed and served a further amended statement of claim ("the third statement of claim"). On 16 October 1997 the directions hearing fixed by Whitlam J came on before me. I waived compliance with the requirement that the respondents file a fresh notice of motion in respect of the third statement of claim on the basis that the relief sought by the notice of motion filed on 12 August 1997 should be treated as sought in respect of the third statement of claim. I directed that counsel instructed by the respective parties confer for the purpose of identifying, and if possible, limiting, the issues between them concerning the third statement of claim. I interpolate that it is not apparent that this direction was complied with in accordance with its spirit. I further directed the exchange of written submissions on the strike out application to the extent that they remained necessary. On 27 October 1997 the proceeding came before me again. During the course of argument on that day the applicants withdrew the third statement of claim. I made orders and directions on that day which allowed the applicants to file and serve a fourth statement of claim, but which were intended to ensure that the applicants were able to consider objections which would be raised by the respondents to such document before it was formally filed and served. Again it is not apparent that the spirit of these directions was complied with. On 28 November 1997 the applicants filed and served another further amended statement of claim ("the fourth statement of claim"). Written submissions were exchanged on the question of whether the fourth statement of claim should be struck out. On 10 March 1998, during the course of argument before me as to whether the fourth statement of claim should be struck out, the applicants withdrew it. On that day I gave leave to the applicants to file a further statement of claim, but on the basis that, if a motion to strike out such statement of claim should succeed, I would entertain an application to dismiss the proceeding. On 31 March 1998 the applicants served another further amended statement of claim ("the fifth statement of claim") dated 30 March 1998. It has not been suggested by any respondent that such statement of claim should be struck out. It is more limited in the causes of action which it advances than the original statement of claim. The respondents now seek the following orders: "1. The costs order made by Justice Whitlam on 11 September 1997 be payable forthwith. 2. The applicants pay the Second, Third, Fourth and Eighth Respondents' costs of and incidental to the hearing before Justice Branson on 16 October 1997. 3. The Applicants pay the Second, Third, Fourth and Eighth Respondents' costs of and incidental to the hearing before Justice Branson on 27 October 1997. 4. The Applicants pay the Second, Third, Fourth and Eighth Respondents' costs of and incidental to the hearing before Justice Branson on 4 May 1998. 5. The costs in paragraphs 2, 3 and 4 be assessed and payable forthwith. 6. These proceedings be stayed until the costs in paragraphs 1, 2, 3 and 4 are paid, and 7. Such further or other orders as the Court may deem fit." I understand the failure to refer to the hearing before me on 10 March 1998 to be an oversight. As is mentioned above, the applicants concede that they must meet the costs of and incidental to their amendments to their statement of claim. Order 62 rule 3 of the Federal Court Rules is concerned with the time for dealing with costs. It provides: "(1) The Court may in any proceeding exercise its powers and discretions as to costs at any stage of the proceeding or after the conclusion of the proceeding. (2) Where the Court makes an order in any proceeding for the payment of costs the Court may require that the costs be paid forthwith notwithstanding that the proceeding is not concluded. (3) An order for costs of an interlocutory proceeding shall not, unless the Court otherwise orders, entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded or further order." Order 62 rule 3 does not give any indication of the matters to which the Court is to have regard in determining whether to order that certain costs be paid forthwith notwithstanding that the proceeding is not concluded. Olney J in Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 at 312 expressed the view that - "the discretion should be exercised in favour of a party who establishes that the demands of justice require that there be a departure from what appears to be the general practice envisaged by the rule, namely, that an order for costs of an interlocutory proceeding shall not entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded." In Allstate Life Insurance Co v Australia & New Zealand Banking Group Limited (No 14) (Lindgren J, 18 August 1995, unreported) his Honour expressed the view that the provision of the Federal Court Rules allowing orders that costs be paid forthwith is "possibly under utilised". His Honour indicated that where the final determination of a proceeding was "far away", it might be appropriate for use to be made of O 62 r 3. In Allstate Life Insurance Co v Australia & New Zealand Banking Group Limited (No 13) (Full Federal Court, 17 August 1995, unreported) the Court, in considering the costs of an interlocutory appeal, said: "The litigation is complex. It is unlikely that final judgment will be given until late 1996 or even later. The successful parties to the appeals before this Court will therefore, in the ordinary course of events, not recover their costs for a long time. It would be wrong if the successful parties do not enjoy the fruits of their order for costs for such a long time. The parties entitled to the benefit of the order for costs which this Court has made in appeals from interlocutory orders should not be deprived of that benefit until the case has been finally disposed of." The statement of claim in this matter suggests that the litigation will be complex. Certainly the matter to date has proceeded slowly. A hearing date can not realistically be expected for many months. I therefore take into account in the exercise of my discretion the fact that, unless an order is made pursuant to O 62 r 3, the respondents will not receive the benefit of the orders for costs made in their favour for a considerable time. In Harris v Cigna Insurance Australia Limited (1995) 17 ATPR 41-445 Kiefel J accepted that an order that certain costs be taxed and paid forthwith was justified in circumstances where there had been "long delay in the close of pleadings by the pursuit of an ill-considered and perhaps unnecessary claim". Her Honour's approach appears to reflect a view, with which I am in agreement, that the demands of justice may well require a departure from the ordinary rule that costs are to be paid after the completion of proceedings, where a party has been required to incur significant costs over and above those which it would have incurred had the opposing party acted in the handling of the proceeding with competence and diligence. In this case the applicants filed and served five different versions of a statement of claim over a period of nine months. The applicants' own counsel ultimately conceded that the first four versions were unsatisfactory and required to be redrawn, but not before the respondents incurred the costs of instructing counsel to attend at Court on strike out applications. Costs incurred in such circumstances are not costs which, in the ordinary course, a party should be expected to bear until a proceeding is concluded. They are costs in reality thrown away and in respect of which, in my view, the demands of justice may require a departure from the general practice envisaged by O 62 r 3. It may be noted that Lehane J in Vasyli v AOL International Pty Limited (Lehane J, 2 September 1996, unreported) ordered that costs incurred by a party in obtaining an order that a totally unsatisfactory statement of claim be struck out should be paid forthwith notwithstanding that the proceeding was not concluded. His Honour made such an order on the ground that the proceeding, if it were to continue, would do so on the basis of an amended statement of claim and, to a large extent, would be a new proceeding. See also the decision of Goldberg J in Mitanis v Pioneer Concrete (Vic) Pty Ltd (Goldberg J, 25 February 1998, unreported), where his Honour made an order that costs be taxed and paid forthwith where an interlocutory application had resulted in one of three causes of action being removed from "the arena of dispute between the parties". I conclude that in the circumstances of this case, the interests of justice require that there be a departure from the ordinary rule that an order for costs of interlocutory proceedings does not entitle a party to have a bill of costs taxed, and the costs paid, until the principal proceeding is concluded. In so concluding I do not overlook the suggestion put forward on behalf of the applicants that such a departure from the ordinary rule may have the effect of stifling the proceedings. I am not satisfied that it would necessarily have such an effect. However, even if I were, my conclusion would not alter. There will be an order that paragraph 2 of the order of Whitlam J made on 11 September 1997 be varied by the deletion of the words "but not at liberty to enforce that order" and the insertion in lieu thereof of the words "and such costs are payable forthwith notwithstanding that the proceeding is not concluded." There will further be an order that the costs of and incidental to the hearings before me on 16 and 27 October 1997 and 10 March 1998 be paid forthwith notwithstanding that the proceeding is not concluded. The hearing before me on 4 May 1998 was concerned with the issues dealt with in these reasons for decision. Each party has had a measure of success concerning such issues. I conclude that it would be appropriate for no order for costs to be made concerning the hearing before me on 4 May 1998. The respondents have, in addition, sought an order that the proceeding be stayed until the applicants pay the costs of the interlocutory hearings. I am not satisfied that such an order should be made in this case, at least at this time. The respondents will have available to them, once their costs are either taxed or agreed, all of the ordinary processes of the law for the recovery of liquidated sums of money. I am not satisfied that it would be appropriate in the present circumstances of this case to provide them with alternative remedy should they have difficulty in recovering their costs, namely the remedy of a stay of the proceeding.

Pacific Acceptance Corporation Ltd v Forsyth

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