PORTER STREET INVESTMENTS PTY LTD -v- NELLBAR PTY LTD [2022] WASCA 33 (18 March 2022)

2 Nellbar resisted orders allowing the appeal. This was notwithstanding that the appellants sought relief along the lines of that identified by the court in the Appeal reasons[2] (albeit that the appellants' drafting left a lot to be desired). Counsel for Nellbar contended that orders of the type sought by the appellants would not work insofar as, in the event that the RTA shares or Edjudina Station had been bought‑back or transferred at an undervalue, Nellbar would have to meet the whole of any adjustment. Inevitably that is so. But it is unremarkable in circumstances where there are three shareholders in Hampton Transport, and the transactions sought and obtained by Nellbar resulted in it (or persons or entities associated with it) being potentially advantaged while the other shareholders (Porter Street and Woodhaven) were potentially disadvantaged. Ultimately what is required to eliminate any unfairness or injustice as between the shareholders is an appropriate adjustment as between the shareholders.

3 This is possible by appropriate modification to the primary court's orders made 27 August 2020 insofar as, by pars 8, 14 and 25, there was to be distribution by Hampton Transport to each of Porter Street, Woodhaven and Nellbar in the same percentages (each receiving 26% of the net proceeds of the RTA shares, Edjudina Station and the sale of Hampton Transport's business and assets as a fully franked dividend). Put simply, in terms of doing practical justice as between the two disputing camps, any notional 'under' distribution to the first and second appellants on the two completed transactions could be adjusted for by a like 'top-up' distribution on the future transaction, and vice versa.

4 When this was debated between counsel for Nellbar and the court, and the significance of the various equivalent orders for distribution was understood, counsel for Nellbar accepted that with some 'tweaking' the orders as proposed by the appellants could be fixed. Counsel said that his suggested 'knock-out blow' in answer to the appeal being allowed 'would not fly'. However, it remained the case that there were drafting deficiencies in the orders as sought by the appellants and the undertaking that they proffered.

5 Apart from a miscellany of typographical and transpositional errors, the orders and undertaking proposed by the appellants were deficient in as much as:

1. The orders contemplated remitter to determine the RTA Sale Price and the Edjudina Station Amount. It is, however, unnecessary and unproductive to redetermine those amounts. The relevant transactions have already been completed based on those amounts. What is required is remitter to determine the actual value of the assets at the time of the transactions, so as to determine what, if any, differential exists as between the true values and the RTA Sale Price and the Edjudina Station Amount.

2. The orders did not properly adjust for the effect of any under or over payment (as between the RTA Sale Price and the Edjudina Station Amount and the true values) because what the appellants contemplated was a direct payment as between Nellbar and Porter Street/Woodhaven (or the other way round) rather than appropriately adjusting the final fully franked dividend under par 25 of the orders. (In part this explains the opposition to the orders as voiced by counsel for Nellbar on delivery of the Appeal reasons.)

3. The undertaking was couched in terms of not opposing appropriate orders in action COR/265/2013 rather than consenting to an undertaking of the kind mentioned in the Appeal reasons.[3]

6 This was the appellants' fourth attempt at drafting the orders wanted. The failure to submit adequate orders to give effect to the Appeal reasons was conspicuous and such as to cast doubt on whether the appellants' legal representatives were capable of drafting the necessary orders. In the circumstances the court considered that there was little to be gained in inviting the appellants' legal representatives to have yet another try. Instead the court determined that it would prepare and circulate the orders.

7 Proposed orders as drafted by the court are set out at [12] below.

8 On costs, the appellants sought the costs of appeal CACV/97/2020 and the hearing before the primary court on 4 September 2020 so far as relevant to the issues raised by the appeal. The appellants accepted that they should pay Nellbar's costs of appeal CACV/105/2020. Nellbar sought those costs on an indemnity basis. Nellbar also submitted that, having regard to the limited degree of success the appellants had enjoyed in appeal CACV/97/2020, there should be no order as to the costs of that appeal.

9 There is no basis for the appellants to have any costs in relation to the hearing before the primary court on 4 September 2020. That application was misconceived; it should never have been brought.[4] The primary court's costs order must stand. In terms of appeal CACV/105/2020 the only issue is whether Nellbar should have its costs of the appeal on an indemnity basis. Those costs should be paid on an indemnity basis. This court has characterised that appeal as hopeless.[5] It is appropriate that the appellants' liability for costs be assessed on an indemnity basis as the appeal is one that should never have been brought or pursued.[6]

10 The appellants disturbed the order under appeal in appeal CACV/97/2020. Costs should follow the event. However, the appellants raised a number of matters that were without merit. Grounds 1 - 3 constitute discrete and severable issues on which the appellants failed and which added to the costs of the appeal in a significant and readily discernible way. Ground 4, which was the sole ground on which the appellants were successful, received next to no exposition in the appellants' written and oral submissions. The orders wanted by the appellants were deficient despite the appellants having multiple opportunities to provide appropriate orders.[7] Indeed, the deficiency continued on delivery of reasons. The court has had to draft the appropriate orders. The issues on which the appellants have failed, and the continued failure to produce orders wanted capable of being made by the court, have undoubtedly resulted in Nellbar incurring costs that it ought not to have incurred. In all the circumstances it is just and fair that the appellants should only recover a portion of their costs. The appropriate order is that, subject to one matter, Nellbar pay one third of the appellants' costs in relation to appeal CACV/97/2020.

11 The exception to that costs order is that the appellants should not recover any costs post-appeal hearing. The work done post-appeal hearing largely concerned the orders wanted. What was provided on behalf of the appellants was well below the standard that this court expects of legal practitioners practising in the court. It is not work for which there should be any costs recovery as against Nellbar. Moreover, on delivery of these supplementary reasons we would hear from the legal representatives for the appellants as to why an order should not be made to ensure that the appellants are not charged for any post-appeal hearing costs.

12 Subject to hearing from the parties as to any matters as to the details of the orders, but without revisiting the matters already ventilated, we would make orders as follows:

2. Paragraph 25 of the orders of the Supreme Court of Western Australia made 27 August 2020 in action COR/266/2013 is varied as follows (the underlining identifying variations to the original order):

'Upon receipt of the proceeds of sale referred to in paragraph 24(2) above and determination of the Gross Adjustment Amount, Hampton Transport Services shall forthwith distribute those proceeds in the following manner:

(i) 26% thereof plus one half of the Adjustment Amount, to Porter Street Investments as a fully franked dividend;

(ii) 26% thereof plus one half of the Adjustment Amount, to Woodhaven as a fully franked dividend;

(iii) 26% thereof minus the Adjustment Amount, to Nellbar as a fully franked dividend;

(iv) 11% to Mr Bart Jones;

(v) 11% to Mr Dave Jones.

(A) the 'Adjustment Amount' is 52% of the Gross Adjustment Amount; and

(a) the fair value of Hampton Transport Services' shares in RTA as at 7 September 2020 minus the RTA Sale Price; plus

(b) the fair value of Hampton Transport Services' interest in Edjudina Station (including livestock and plant & equipment) as at 7 September 2020 minus the Edjudina Station Amount.

3. Action COR/266/2013 is remitted to Sanderson M to determine for the purposes of par 2 above:

1. the fair value of Hampton Transport Services Pty Ltd's shares in Road Trains of Australia Pty Ltd as at 7 September 2020 (see par 25(B)(a) in par 2 above); and

2. the fair value of Hampton Transport Services Pty Ltd's interest in Edjudina Station (including livestock and plant & equipment) as at 7 September 2020 (see par 25(B)(b) in par 2 above).

4. Orders 1 - 3 are subject to and conditional upon the appellants filing by 4 pm on the day being 2 business days after the date of these orders an undertaking in the form in the schedule to these orders duly executed by the first and second appellants.

5. The parties have liberty to apply in relation to the implementation of these orders (including their implementation if no or insufficient franking credits are available) and the implementation of the undertaking.

6. In relation to appeal CACV/97/2020, the first respondent pay one third of the appellants' costs of the appeal excluding all post-appeal hearing costs.

7. In relation to appeal CACV/105/2020, the appellants pay all the costs incurred by the first respondent except insofar as the costs are of an unreasonable amount or have been unreasonably incurred so that, subject to those exceptions, the first respondent is completely indemnified by the appellants for its costs in relation to appeal CACV/105/2020.

8. The costs the subject of appeal CACV/97/2020 and appeal CACV/105/2020 are to be assessed if not agreed.

The first and second appellants undertake to the first respondent and the court that, if in action COR/265/2013 the first respondent seeks orders for a 7 September 2020 revaluation of Jones Partners Pty Ltd and for the first and second appellants to make a shortfall payment to the first respondent to the extent that the revaluation amount is more than the price paid for the first respondent's shares in Jones Partners Pty Ltd, the first and second appellants will consent to the orders sought by the first respondent so that the outcome in action COR/265/2013 as to Nellbar's shares in Jones Partners Pty Ltd replicates mutatis mutandis the outcome of this appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CITATION : PORTER STREET INVESTMENTS PTY LTD -v- NELLBAR PTY LTD [2022] WASCA 33 (S2)

Citation : NELLBAR PTY LTD -v- JONES PARTNERS PTY LTD [No 2] [2020] WASC 336

Practice and procedure - Costs - Orders that appellants' legal representatives not claim costs and refund costs already paid post‑appeal hearing - Where appellants failed to submit adequate orders wanted - Negligent conduct - Turns on own facts

Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33

Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33 (S)

Ridehalgh v Horsefield [1994] Ch 205

13 The legal representatives of the appellants were asked to show cause as to why an order should not be made to ensure that the appellants were not charged for any post-appeal hearing costs. After hearing from counsel for the appellants, appearing on behalf of himself personally and also for his instructing solicitors, the court made orders having that substantive effect, with reasons to follow. These are our reasons for those orders.

14 The issue arose in the context of the court's earlier reasons being:

1. Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33 (Initial Reasons).

2. Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33 (S) (Supplementary Reasons).

15 Put shortly, for the reasons set out in the Supplementary Reasons the court made costs orders which prevented the successful appellants from recovering costs incurred post-appeal hearing against the first respondent. The work done post-appeal hearing largely concerned the orders wanted. In the Supplementary Reasons the court stated at [11]:

[T]he appellants should not recover any costs post-appeal hearing. The work done post-appeal hearing largely concerned the orders wanted. What was provided on behalf of the appellants was well below the standard that this court expects of legal practitioners practising in the court. It is not work for which there should be any costs recovery as against Nellbar [the first respondent]. Moreover, on delivery of these supplementary reasons we would hear from the legal representatives for the appellants as to why an order should not be made to ensure that the appellants are not charged for any post-appeal hearing costs. (emphasis added)

16 On delivery of the Supplementary Reasons, counsel for the appellants sought to persuade the court to delete the sentence that is italicised in [3] above. Counsel said that he had not been heard on that finding.

17 The appellants were heard on the subject of the orders wanted as filed post-appeal hearing. The substituted orders wanted dated 21 December 2021 were accompanied by written submissions which were considered by the court. Counsel for the appellants made oral submissions in support of the minute of proposed orders dated 17 March 2022, eventually conceding that that they were deficient. Accordingly, it is not the case that the appellants were not heard on the orders wanted as filed post-appeal hearing. Moreover, the observation as italicised in [3] above was made in the context of the court giving reasons why, as between the appellants and the first respondent, the appellants should not recover any costs post-appeal hearing. When the parties made submissions on the costs of the appeal following the delivery of the Initial Reasons counsel for the appellants was asked to make any submissions as to whether the appellants should recover costs post-appeal hearing. In any event, for the reasons that follow, we remain of the view that the various iterations of the orders wanted provided on behalf of the appellants post-appeal hearing were well below the standard that this court expects of legal practitioners practising in the court.

18 It was for these reasons that the court rejected counsel for the appellants' application to delete the sentence in the Supplementary Reasons as is italicised in [3] above.

19 The Initial Reasons contain a summary of the deficiencies in the orders wanted that were provided post-appeal hearing. See Initial Reasons at [86] ‑ [89] and [145] ‑ [160]. That was in a context where earlier iterations of the orders wanted were also deficient. See Initial Reasons at [82] ‑ [85]. The Supplementary Reasons contain a summary of some of the deficiencies in the orders wanted that were provided upon delivery of the Initial Reasons. See Supplementary Reasons at [4] ‑ [6]. Those deficiencies were all the more glaring in as much as the Initial Reasons identified what should be provided for in the orders to be moved for. See Initial Reasons at [170] (referring to Initial Reasons at [153] ‑ [156], [163] - [164] and [167] - [168]).

20 Order 66 r 5(1) of the Rules of the Supreme Court 1971 (WA) (RSC) provides:

Where in any proceedings costs are incurred by a party

(a) as a result of any improper, unreasonable, or negligent act or omission; or

(b) which, in the light of any such act or omission occurring after they were incurred, the Court considers it is unreasonable to expect that party to pay,

the Court may order any practitioner whom it considers to be responsible (whether personally or through a servant or agent)

(c) to pay those costs personally or to indemnify any party who has been ordered to pay those costs; or

(d) not to claim any relevant costs or fees; or

(e) to refund any relevant costs or fees which may have been paid already.

21 The order made by the court was one in terms of O 66 r 5(1)(d) and (e) RSC: the court ordered that, as against the appellants, the appellants' legal representatives not claim any costs or fees, and refund any costs or fees which may have been paid already, for the work done post-appeal hearing.

22 Subject to exceptions that are presently immaterial, no order may be made against a practitioner under O 66 r 5 RSC unless the practitioner has been given a reasonable opportunity to appear before the court to show cause why the order should not be made: O 66 r 5(2) RSC. The appellants' legal representatives were given notice of the need to show cause when an advance copy of the Supplementary Reasons was provided to them on the day before the Supplementary Reasons were published. They were given an opportunity on delivery of the Supplementary Reasons to make oral submissions on why an order of the type proposed should not be made. The appellants' legal representatives also filed substantial written submissions in opposition to the making of such orders.

23 The appellants' legal representatives' written submissions repeated the background, seeking to emphasise an observation by the master as to the difficulty in the crafting of orders and the mechanics of separation. That, however, was referring to difficulties as between the parties. It is not pertinent to the post-appeal hearing orders wanted - proposed orders prepared after the appellants' legal representatives were given direction by this court as to the obvious deficiencies in the earlier iterations of the orders prepared on behalf of the appellants and what ought to be done to rectify those deficiencies.

24 The appellants' legal representatives also contended that:

1. Until delivery of the Initial Reasons they had not appreciated the sort of mechanism as identified by the court - this, of course, is no answer to the deficient orders wanted provided on delivery of the Initial Reasons. Nor does it have force as to the 21 December 2021 substituted orders wanted. The mechanism outlined in writing in the Initial Reasons was identified orally in discussion between counsel for the appellants and the court at the appeal hearing.

2. They did have in mind the necessity for a person to be joined and heard if its rights or liabilities were to be detrimentally affected - even accepting, in the appellants' legal representatives' favour, that this was the case, the 21 December 2021 substituted orders wanted did not address the necessity for such joinder. The orders wanted proposed orders that adversely affected the rights and liabilities of non-parties despite the appellants' legal representatives apparently being alive to settled authority that this was impermissible. In any event, as was conceded, the premise on which the appellants' legal representatives proceeded was in error.

3. The 17 March 2022 minute of proposed orders (as provided in anticipation of judgment delivery following an advance copy of the Initial Reasons) was a reasonable attempt to achieve the kind of outcome identified by the court in the limited time available to the appellants' legal representatives.

25 The final matter does not sit comfortably with counsel for the appellants' concession, on delivery of the Initial Reasons, that the orders wanted as provided in the minute of proposed orders dated 17 March 2022 were deficient. Nor does it acknowledge the obvious failure of the orders sought to properly adjust for the effect of any under or over payment in the eventual fully franked dividend to be distributed by Hampton Transport Services Pty Ltd - as is explained at [5.2] of the Supplementary Reasons. In submitting that the orders sought to achieve that which had been identified by the court the appellants' legal representatives misapprehended the effect of their proposed orders (which took no account of the fully franked dividend as provided for under the primary court's orders of 27 August 2020).

26 The exercise of the court's jurisdiction under O 66 r 5 RSC is not to be lightly invoked and requires great care in its application. Two other things should be noted about O 66 r 5(1) RSC.

27 First, the court only has jurisdiction to make an order where the improper, unreasonable or negligent conduct complained of has caused unnecessary or wasted costs; and, then, only to the extent of such costs. In this instance that is catered for by the terms of the order made by the court. The substance of the order as made was to deprive the appellants' legal representatives of any costs recovery in respect of relevant work done post-appeal hearing. As, in our view, the costs associated with such work resulted from negligent conduct, the order was within jurisdiction.

28 Second, it is necessary that there be some improper, unreasonable or negligent act or omission. On this occasion it was only necessary to consider whether there had been negligent conduct. In this context 'negligent' conduct is to be understood in a non-technical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession. See Ridehalgh v Horsefield [1994] Ch 205, 232 ‑ 233. However, that must be considered in the circumstances as confronted the practitioners at the relevant time and not with the benefit of hindsight. Also, it is important to remember that a practitioner may be wrong without thereby being negligent.

29 We were and are satisfied that the post-appeal hearing work done by the appellants' legal representatives was 'negligent' in the sense previously stated. Relevantly:

1. At the appeal hearing the court identified deficiencies in the earlier iterations of the orders wanted and called on the appellants to file substituted orders wanted with accompanying submissions.

2. The material filed on 21 December 2021 (substituted orders wanted and accompanying submissions) did not address the matters raised by the court with counsel for the appellants in the course of the appeal hearing. To the contrary, the substituted orders wanted perpetuated various earlier deficiencies and added new ones - the most patent of which was to seek orders affecting non-parties to the appeals. There was no basis on which this court could have made the orders wanted. It is trite that the court should not make an order unless a person whose rights or liabilities are affected is joined as a party. That is something which all practitioners practising in this court should be aware of. Despite that the orders wanted as filed sought orders that affected the rights and liabilities of non-parties to the appeal. In propounding the substituted orders wanted of 21 December 2021 the appellants' legal representatives failed to act with the competence reasonably to be expected of ordinary members of the profession.

3. The material filed in anticipation of judgment delivery failed to meet the criteria spelt out by the court in the Initial Reasons. See the Supplementary Reasons at [5] - [6]. Again, by not being able to follow what was provided for in the Initial Reasons, the appellants' legal representatives failed to act with the competence reasonably to be expected of ordinary members of the profession. As a result the preparation of the material provided in anticipation of judgment, and the time spent before the court on delivery of judgment, was all wasted.

30 Sometimes difficulties arise in the application of O 66 r 5 RSC because it is difficult to determine whether conduct which is improper, unreasonable or negligent is attributable to the practitioner as opposed to the client. That concern does not arise in this case. The preparation of the orders wanted was not something for the lay clients. The deficiencies in the orders wanted are solely attributable to the appellants' legal representatives.

31 The jurisdiction under O 66 r 5 RSC was enlivened. The appellants' legal representatives had acted negligently in the sense earlier described. That conduct caused the appellants to incur unnecessary or wasted costs post-appeal hearing. In all the circumstances it was just to deprive the appellants' legal representatives of their post-appeal hearing costs so that the appellants were not visited with unnecessary or wasted costs caused by the negligence of their legal representatives.

1. Pursuant to O 66 r 5(1) of the Rules of the Supreme Court 1971 (WA), the appellants' legal representatives not claim any costs or fees, and refund any costs or fees which may have been paid already, in connection with or incidental to:

(a) the substituted orders wanted dated 21 December 2021;

(b) the appellants' additional submissions dated 21 December 2021 and the appellants' submissions dated 8 April 2022;

(c) preparation for judgment delivery on 18 March 2022 (including the minute of proposed orders dated 17 March 2022); and

(d) appearing at judgment delivery on 18 March 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33 (Appeal reasons).

[2] See Appeal reasons [167] - [168], [170].

[4] Appeal reasons [49] - [52], [136] - [144].

[6] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10.6]; Ben-Pelech v Royle [2020] WASCA 168 (S) [6] - [8], [18], [20].

[7] See Appeal reasons [82] - [90], [145] - [160], [165].