Seller v Jones

Court of Appeal (NSW)|2013-04-24|Before: McColl JA, Basten JA, Ward JA, Black J

toudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Mahenthirarasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201; (2008) 72 NSWLR 273 Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Peters v Peters (1907) 7 SR (NSW) 398 Rasch Nominees Pty Ltd v Bartholomaeus [2013] SASCFC 105 State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291 Category: Principal judgment Parties: Ross Seller - Applicant Michael Gregory Jones in his capacity as liquidator of Wingaway Air Pty Limited (In Liquidation) and as administrator of Heron Airlines Travel Pty Limited (Subject to Deed of Company Arrangement) - First Respondent Wingaway Air Pty Limited (In Liquidation) - Second Respondent Heron Airlines Travel Pty Limited (Subject to Deed of Company Arrangement) - Third Respondent Representation: Counsel: Solicitors: File Number(s): CA2012/301511 Publication restriction: No Decision under appeal Citation: In the matter of Wingaway Air Pty Ltd (Administrator Appointed) and In the matter of Heron Airlines Travel Pty Ltd (Administrator Appointed) (unreported) Date of Decision: 2012-09-03 00:00:00 Before: Black J File Number(s): SC 2012/159605

Judgment 1McCOLL JA: Mr Ross Seller, the applicant and sole director at the relevant time of AT Air Group Pty Ltd ("AT Air") and Wingaway Air Pty Ltd ("Wingaway"), seeks leave to appeal against an indemnity costs order made against him by Black J in favour of Mr Michael Jones, the first respondent, in his capacity as liquidator of Wingaway (in liquidation), the second respondent, and as administrator of Heron Airlines Travel Pty Ltd ("Heron") (subject to deed of company arrangement), the third respondent: In the matter of Wingaway Air Pty Ltd (Administrator Appointed) and In the matter of Heron Airlines Travel Pty Ltd (Administrator Appointed) (Supreme Court of New South Wales, Black J, 3 September 2012, unreported) (the "costs judgment"). 2This is the concurrent hearing of the applicant's application for leave to appeal and, if leave be granted, the hearing of his appeal against the primary judge's decision. 3For the reasons that follow, I would grant leave to appeal but dismiss the appeal with costs. I shall refer to the applicant as the appellant henceforth.

Statement of the case 4The appellant was the sole director of AT Air and Wingaway. AT Air was the holding company of Wingaway. 5On or about 25 January 2012, at a meeting attended only by the appellant, Wingaway declared a dividend in favour of AT Air of $5,500,000 and purported to satisfy that dividend in specie by transferring to AT Air two Piper Mojave aircraft ("the Aircraft"). 6On 9 February 2012, the first respondent was appointed administrator of Wingaway and Heron. On 15 May 2012 the first respondent entered into a contract in his capacity as administrator of Wingaway and Heron to sell their businesses to Aviation Logistics (the "Sale Agreement"). 7On 16 May 2012, the appellant took possession of Wingaway's and Heron's premises at Bankstown Airport by appointing a security guard to be present, locking himself inside, appointing a locksmith to change the locks and refusing entry to the companies' staff. He also removed and relocated two of Wingaway's aircraft purporting either in his own right, or that of AT Air Group, to have an entitlement so to do based on a resolution "purportedly passed at a meeting of the directors of Wingaway held on 25 January 2012 which was attended only by Mr Seller": In the matter of Wingaway Air Pty Ltd (Administrator Appointed) and In the matter of Heron Airlines Travel Pty Ltd (Administrator Appointed) (Supreme Court of New South Wales, Black J, 9 July 2012, unreported (at [9])) (the "liability judgment"). 8The first respondent thereupon hired security guards to guard both the hangar to which the two aircraft had been removed and the second and third respondents' premises at Bankstown Airport. 9On the same day, the first respondent's solicitor wrote to the appellant's solicitors asserting the above facts and alleging that the appellant's actions amounted, among other matters, "to a conversion of the property of Wingaway". The letter demanded that the appellant give the first respondent and his staff access to the premises, depart from the premises and direct the security guard to depart, and return the aircraft. It also put the appellant on notice that the first respondent reserved his rights including a right to seek urgent injunctive relief as well as damages for any expense referable to the appellant's asserted unlawful conduct. Finally it warned that if such action were taken a copy of the letter would be tendered when costs were sought against the appellant personally on a "full indemnity basis". 10The solicitor's letter in response, also dated 16 May, advised that the author acted for the appellant and for "Avtex Pty Ltd" ("Avtex"), which was apparently a sister company of Wingaway and the lessee of the premises at Bankstown Airport, and that the "two aircraft have been moved to another facility at Bankstown airport, as those aircraft are [the] property of AT Airgroup Pty Ltd, which has authorised our client to do so". The letter suggested a meeting to resolve any ongoing dispute. 11Further emails were exchanged, one of which, sent by the first respondent's solicitor, dated 17 May 2012, emphasised the adverse impact of the appellant's removal of the aircraft on Wingaway's business and the sale of both that company and Heron. It advised that "unless the planes are returned immediately, the Administrator will approach the court", and that: "An approach that might commend itself to your client is to return the planes forthwith and then argue about ownership later. However, the Administrator cannot compel your client to do this without resort to the assistance of the court. This will represent the second time your client's conduct has necessitated a court application in these administrations. This matter will be noted when costs are sought against your client on the indemnity basis." 12The parties' solicitors exchanged further letters the same day reiterating their clients' respective positions. The appellant's solicitors asserted that AT Air "maintains that the aircraft were transferred, as an in specie part payment of the dividend declared by Wingaway in the resolution made on 25 January 2012". The first respondent's solicitors responded rejecting the assertions made and foreshadowed approaching the court for urgent relief as previously advised unless the solicitors' "clients" (which by that stage appeared to include the appellant, AT Air and Avtex), "confirm in writing that they relinquish, irrevocably, any all claims [sic] to ownership or possession of any of the nine aircraft in issue ...". The appellant's solicitors rejected that proposal. 13On 18 May 2012, the respondents commenced proceedings in the Equity Division of the Supreme Court by Originating Process naming the appellant and AT Air as first and second defendants respectively, seeking, by way of Interim Orders an order that the appellant and/or AT Air deliver up possession of two Piper Mojave aircraft (registration numbers VH-OGW and VH-XGW -) (the "Aircraft") to the first respondent and an order restraining the appellant and AT Air from interfering with the respondents' possession, control or use of the Aircraft pending further order. 14The application was said to be made under s 439A, s 1317H and s 1324 of the Corporations Act 2001 (Cth). The parenthetical paragraph on the first page of the Originating Process stated: "[Challenge to a purported transfer of assets from the Second Plaintiff to the Second Defendant; breach by the First Defendant of his duties as a director; and extension of time for convening the second meeting of creditors]" 15The Amended Originating Process sought as final orders, among others, a declaration that there had been no legally valid transfer of the Aircraft from Wingaway to AT Air on or about 25 January 2012, and insofar as might be necessary, an order that the defendants return and transfer title and possession of the Aircraft to Wingaway, and a compensation order pursuant to s 1317H of the Corporations Act and damages. 16The first respondent swore an affidavit in support of the application setting out the history of his appointment, steps he had taken as administrator including entering into the agreement to sell the second and third respondents' businesses to Aviation Logistics and referring to the events of 16 May 2012. He explained the impact of the removal of the Aircraft on the completion of the Sale Agreement as well as his ability to continue to operate the businesses pending completion. He dealt in detail with, and disputed, AT Air's assertion of ownership of the Aircraft. He asserted, among other matters, that any such transfer was void on the basis that it was in breach of the appellant's director's duties, referring to ss 180 - 184 of the Corporations Act. 17The Originating Process came before Brereton J on 21 May 2012. On that day his Honour, by consent, noted undertakings and made orders in accordance with Short Minutes of Order (the "consent orders"). Upon the respondents giving the usual undertaking as to damages, the "defendant" [sic] was ordered to deliver the Aircraft to the first respondent by 5pm the same day. Further, the defendants were, until further order, ordered not to interfere with the respondents' possession, control or use of the Aircraft and other property not presently relevant. Pursuant to the consent orders the respondents undertook, among other matters, to restore the aircraft to AT Air in the event the court found that entity was "their owner and entitled to possession thereof". This Court was informed that the Aircraft were returned, I assume, in accordance with the consent orders. 18On 6 June 2012, the appellant filed a submitting appearance in which he submitted "to the making of all orders sought, and the giving or entry of judgment in respect of all claims made, save as to costs". 19On 8 June 2012, the appellant swore an affidavit on behalf of AT Air which purported to set out a detailed and substantive defence to the Originating Process, in particular dealing with the background to the 25 January minute and the purported transfer of the Aircraft to AT Air. That affidavit was served on the respondents' solicitors on 8 June 2012. It was not read in the liability proceedings, but was relied upon by the respondents in the costs proceedings. On 13 June 2012 Mr Patrick McCarthy, a chartered accountant, who had acted as accountant for a number of companies, including Wingaway, Heron, AT Air and Avtex, swore an affidavit setting out his knowledge of the transactions and financial affairs of Wingaway, Heron and Avtex as at 25 January 2012. That affidavit was served on the respondents' solicitors on 13 June 2012. Both affidavits bore the notation that they were "Filed on behalf of the Defendants". 20On 18 June 2012 the appellant's solicitor told the respondents' solicitor of the filing of the appellant's submitting appearance, but the document was not served on the respondents until 3 July 2012. No explanation was given as to why the submitting appearance had not been served until that date instead of "as soon as practicable" as required by Uniform Civil Procedure Rules (NSW) ("UCPR") 10.1(1). 21By interlocutory process filed on 20 June 2012, the respondents sought leave to file an Amended Originating Process to extend the relief claimed against Mr Seller to include a claim for an order that he pay Wingaway the amount of any dividend declared on 25 January 2012, but that application was not pursued when the matter was heard by the primary judge on 9 July 2012. 22On 29 June 2012, the Federal Court of Australia made orders placing AT Air into provisional liquidation. On 9 July 2012, the proceedings came before the primary judge apparently for the purpose of the respondents seeking leave to proceed against AT Air pursuant to s 471B of the Corporations Act. His Honour acceded to that application. Initially AT Air had filed an ordinary appearance in response to service of the Originating Process. However on 9 July 2012 it filed a submitting appearance. 23The matter had been listed for final hearing for three days commencing on 18 July 2012. However, in light of both parties' submitting appearances, the respondents asked the primary judge to hear their claim to the declaration as to ownership of the Aircraft. His Honour acceded to that request. 24The primary judge referred (liability judgment (at [9])) to the fact that the appellant had relocated the Aircraft and observed that it appeared either AT Air or the appellant had asserted an entitlement to the Aircraft based on the 25 January 2012 minute purporting to record the resolution referred to in the 17 May correspondence (see [12] above). His Honour concluded (liability judgment (at [9]) that nothing on the face of that minute, (on the assumption it was authentic) which recorded a resolution to declare a dividend of $5.5 million to AT Air, indicated that Wingaway had resolved to transfer the Aircraft to AT Air in satisfaction of that dividend. Accordingly he held the minute itself conferred no right to possession of the Aircraft on AT Air in part payment of the dividend. 25His Honour also found (liability judgment (at [10])) that other factors strongly indicated AT Air had not transferred the Aircraft to Wingaway. In particular, AT Air had lodged a proof of debt in Wingaway's liquidation claiming an amount said to include the dividend declared on 25 January 2012. Secondly, his Honour accepted evidence from the first respondent that he was not aware of any documents in Wingaway's books or records demonstrating that that company transferred the Aircraft to AT Air, or of any agreement to do so and, thirdly, from evidence that the Civil Aviation Safety Authority's records recorded Wingaway as the current owner of the Aircraft, and the inference that those documents recorded the current position. His Honour concluded he could more readily draw the latter inference where neither the appellant or AT Air sought to lead evidence to establish the transfer had occurred. 26Accordingly his Honour concluded (liability judgment (at [13])) that he could make the following final declarations, relevantly: "1. A declaration that there was no legally valid transfer of two Piper Mojave Aircraft ("Aircraft") from [Wingaway] to [AT Air] on or about 25 January 2012. 2. A declaration that [Wingaway] is the owner of the Aircraft. 27The primary judge otherwise dismissed the Originating Process of 18 May 2012 and the Interlocutory Process of 20 June 2012 on, I assume, the respondents' application. He listed the proceedings to consider, inter alia, the question of costs. At that hearing, in which the appellant participated, the respondents sought an order that the appellant and AT Air pay their costs on an indemnity basis. The primary judge acceded to that application. 28His Honour instructed himself (costs judgment (at [3])) that having regard to the appellant and AT Air's submitting appearances, he must exercise his discretion as to costs "taking into account the role adopted by the party which filed a submitting appearance in the proceedings". He referred to Basten JA's observation in Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 (at [70]) ("Mahenthirarasa") in considering the position as to costs in relation to a party which had filed a submitting appearance, that there may be a question: "... whether a party which sits by, taking no active part in the proceedings, but not consenting to an order, can avoid payment of the applicant's costs incurred in making good a claim to relief." 29His Honour also referred (costs judgment (at [4])) to the following cases as supporting the proposition that a costs order may be made against a party who has filed a submitting appearance where that party's conduct made the proceedings necessary and/or the submitting appearance was filed at a late stage: Buzrio Pty Ltd v Consumer, Trader and Tenancy Tribunal (No 3) [2009] NSWSC 1132 ("Buzrio"), Cutcliffe v Lithgow City Council [2006] NSWLEC 463; (2006) 147 LGERA 330 and China Shipping (Australia) Agency Co Pty Ltd v DV Kelly Pty Ltd (No 2) [2010] NSWSC 1557. 30The respondents contended before the primary judge that the conduct which gave rise to the proceedings was undertaken by the appellant as Wingaway's sole director, that it was the taking of the Aircraft which provoked the proceedings and meant they had to commence them and that the appellant and AT Air in correspondence immediately prior to the commencement of proceedings maintained that the latter was entitled to the Aircraft: primary judgment at [5]. His Honour accepted (at [5]) that "AT Air Group's conduct in respect of the matter was initiated by Mr Seller as its sole director [and], as Mr Seller points out, ... his conduct as a director of AT Air Group is taken on that entity's behalf". However, his Honour continued: "it does not follow that I cannot also have regard to that conduct in assessing the position of Mr Seller himself." 31His Honour then said (costs judgment (at [6])): "The Plaintiffs contend, and I accept, that the delay in filing a submitting appearance by Mr Seller and AT Air Group meant that the Plaintiffs needed to prove their case formally and obtain the declarations that were granted. I am conscious that the Plaintiffs ultimately needed to establish title to the Aircraft as against AT Air Group; however, it is likely that Mr Seller would have been heard in opposition to the orders which the Plaintiffs sought, where he was party to the proceedings, an officer of the company and his conduct was central to the matters in dispute and, as I noted above, he did not serve notice of his submission to orders as to these matters until several days before the hearing. I am also conscious that, so far as the Plaintiffs sought to bring wider claims against Mr Seller, they did not press them at the final hearing; however, they had no need to do so where they had succeeded on their primary claim against AT Air Group. I consider that the conduct of Mr Seller and AT Air Group in asserting title to the Aircraft by AT Air Group and taking possession of the Aircraft and the lateness of their submission to the orders sought are sufficient to support an order for costs against both Mr Seller and AT Air Group under the principles I have noted above." (Emphasis added) 32The respondents also sought an order for indemnity costs against the appellant and AT Air. After referring to authorities setting out the principles applicable to the making of such an order pursuant to s 98(1)(c) of the Civil Procedure Act 2005 (NSW), including that (costs judgment (at [9])) such an order "may be made against a party where it, properly advised, should have known that it had no chance of success", his Honour concluded (at [10]) that on the evidence before him, he did not consider that the appellant or AT Air "could, properly advised, have considered that AT Air Group held title to the Aircraft". He also took into consideration the time the appellant and AT Air respectively served their submitting appearances and concluded that there was "a proper basis for an order for indemnity costs against both". 33His Honour concluded (at [11]) that he could not properly make findings of misconduct against Mr Seller insofar as the respondents sought indemnity costs orders as those claims against him personally were not pressed at the hearing. 34His Honour made the following orders: "1. The Defendants each pay the Plaintiffs' costs of the proceedings up to and including 9 July 2012 on an indemnity basis, as agreed or as assessed. 2. The First Defendant pay the Plaintiffs' costs of and incidental to their application for costs against him and the hearing on 31 July 2012."

Grounds of appeal 35The appellant relies on the following grounds of appeal: "1. His Honour erred in holding that although the appellant relevantly acted at all times as the director of AT Air Group Pty Ltd, just because the appellant procured his company to take an ill advised action on its own behalf, in a case where his Honour found that there were no exceptional circumstances a costs order be made against him. 2. His Honour ought to have found that the appellant was not a necessary party to the injunction proceedings and the proceedings concerning the ownership of the Aircraft and in the circumstances where his Honour found there were no exceptional circumstances no order for costs ought to have been made against him. 3. His Honour erred in not giving sufficient weight to the fact the appellant filed a submitting appearance on 6 June 2012 and that this was brought to the respondents' attention on 18 June 2012. 4. His Honour erred in ordering that: (a) the appellant and AT Air Group Pty Ltd each pay the respondents' costs of the proceedings up to and including 9 July 2012 on an indemnity basis, as agreed or as assessed; and (b) the appellant pay the respondents' costs of and incidental to their application for costs against him and the hearing on 31 July 2012."

Appellant's submissions 36Mr R D Marshall, who appeared for the appellant below and on appeal, submitted that leave to appeal should be granted as the application raised an issue of general importance, namely, can, or should, costs orders be made against a company director merely because that director procured his company to take an ill advised action on its own behalf, in a case where the court found that there were no exceptional circumstances. 37As to the substantive appeal, Mr Marshall emphasised that, as the primary judge had not made any findings of misconduct against the appellant personally, the only basis on which he had been found to be liable for costs was because he had been joined as a party. He contended that the appellant was not a "proper defendant", at least not in relation to the part of the case dealt with by the primary judge on 9 July 2012, because: (1)In correspondence between the appellant's and respondents' solicitors, AT Air rather than the appellant asserted ownership and title to the Aircraft. (2)The appellant filed a submitting appearance on 6 June 2012 of which the respondents were aware from 18 June 2012, even though this was "inadvertently" not served until 3 July 2012. The appellant took no active part in the proceedings after this point. (3)The substantive relief sought by the respondents in the Originating Process was against AT Air, not the appellant. The reference to the appellant's breach of his duties as director of Wingaway was a fall back or "backstop" claim that was abandoned by the respondents. (4)The Interlocutory Process filed on 20 June 2012 which sought leave to file an Amended Originating Process to seek relief against the appellant personally was not pressed by the respondents and dismissed by the Court on 9 July 2012. (5)No final orders were made against the appellant personally in the final relief ordered on 9 July 2012. Furthermore, the primary judge did not make any findings of misconduct against the appellant. 38Secondly, Mr Marshall submitted that at all times the appellant acted as the director and disclosed agent of AT Air and was not personally liable for claims made by AT Air. He conceded that AT Air was liable for costs on an indemnity basis but contended that the appellant was wrongly joined in relation to the claim for recovery of the Aircraft, contrary to s 56 of the Civil Procedure Act, UCPR 6 26 and principles of agency. He submitted that it was not necessary for the respondents to join the appellant in any event, as if an injunction were obtained against AT Air and that injunction was disobeyed, the appellant would be guilty of procuring a contempt. Accordingly, the submitting appearance was effectively a distraction as the appellant had "nothing to defend". 39Thirdly, Mr Marshall contended that the fact that AT Air, under the control of its provisional liquidator, chose to submit to the orders of the Court cannot tell against the appellant. He argued that the Court ought to assume that, had that appointment not occurred, the merits of the dispute would have been the subject of controversy with AT Air defending the matter. Therefore, he contended that the late service of the appellant's submitting appearance was not causative of the respondents incurring costs. 40Finally, Mr Marshall submitted that, in any event, the appellant had "done nothing delinquent in the conduct of the proceedings" to warrant any order for costs against him, let alone indemnity costs.

Respondents' submissions 41Mr D R Pritchard SC, who appeared for the respondents on appeal but not below, opposed leave to appeal being granted on the basis that the primary judge's decision was a discretionary one on a matter of practice and procedure in respect of which the appellant had failed to demonstrate any error warranting appellate interference and that no issue of general importance was raised. 42Mr Pritchard made the following submissions on the substantive appeal. 43First, he submitted that the appellant was a proper or necessary party, both in respect of the more extensive relief claimed on 18 May 2012 and the less extensive orders made on 9 July 2012, because: (1)AT Air's alleged ownership of the Aircraft was founded on the 25 January 2012 resolution purportedly passed by Wingaway at a meeting attended only by the appellant as sole director of both Wingaway and AT Air. (2)The appellant personally physically removed and retained possession of the Aircraft on 16 May 2012 and asserted he was authorised to do so. Accordingly, his conduct meant that he was in a different position to a company director who caused independent third party agents to act for the company. He had to defend his wrongful conduct in personally taking, and retaining possession of, the Aircraft in reliance on the alleged good title of AT Air. (3)The appellant effectively claimed that his removal and retention of the Aircraft was not unlawful because of an entitlement from the party he alleged to be the true owner of the Aircraft, AT Air. Therefore, the appellant would be considered a tortfeasor unless he could establish that AT Air had lawful title, which was the way the proceedings were understood when they were commenced. (4)Interim relief, seeking the delivery up of the Aircraft and an order against interference with the respondents' possession, control or use of the Aircraft, was sought against both the appellant and AT Air. (5)The appellant put the respondents to formal proof regarding AT Air's purported title over the Aircraft. (6)Final orders against the appellant personally in the principal proceedings were not required only because the Aircraft were returned shortly after interim orders were made. 44Secondly, Mr Pritchard submitted that to the extent that the appellant's conduct was solely referable to his role as a director, he never made an application for removal pursuant to UCPR 6 29. 45Thirdly, Mr Pritchard contended that the appellant's submissions did not engage with the primary judge's reasoning concerning the basis of the exercise of his discretion to award indemnity costs, namely, that the appellant and AT Air, properly advised, should have known that they had no chance of success in the proceedings. 46Fourthly, Mr Pritchard submitted that the late service of the appellant's submitting appearance on the respondents conflicted with the obligation under UCPR 10 1(1) to serve that document "as soon as practicable". He referred to the affidavit of the respondents' solicitor, Mr Calabretta, whose unchallenged evidence was that the respondents did not know the appellant's formal position until the submitting appearance was received on 3 July 2012. He observed that there was no evidence to support the proposition that the appellant's failure to serve his submitting appearance as the UCPR required was the result of inadvertence. 47Finally, Mr Pritchard submitted that in the event the Court came to re-exercise the costs discretion, it would make the same order against the appellant.

Leave to appeal 48In my view leave to appeal should be granted as it raises an important issue concerning the breadth of the costs discretion.

Joinder of parties 49A person or entity should be joined as a party to litigation where orders might be made directly affecting that person or entity's rights and liabilities: State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291 (at [76] - [81]) per McHugh J; John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 (at [131]); Australian Securities and Investments Commission (ASIC) v Lanepoint Enterprises Pty Ltd (recs and mgrs apptd) [2011] HCA 18; (2011) 244 CLR 1 (at [49]). 50The threshold as to whether orders may have the effect referred to in [49] is not high. In State of Victoria v Sutton (at [77]) McHugh J said it was "the invariable practice of the courts to require a person [whose rights or interests may be affected by an order a court was asked to make] to be joined as a party if there is an arguable possibility that he or she may be affected". The reason for that "practice" is, at minimum, observance of the rules of natural justice and the desirability of avoiding a multiplicity of suits (cf s 63 Supreme Court Act 1970 (NSW), s 56 Civil Procedure Act) and inconsistent decisions: State of Victoria v Sutton (at [77]); Associated Grocers Co-operative Ltd v Hubbard Properties Pty Ltd (1986) 42 SASR 321 (at 341). 51In News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 ("News Ltd") (at [525]) the court said that where the question whether a necessary party has been joined arose after final orders had been made in the proceedings, the inquiry as to whether a necessary party has been joined must be directed to the orders actually made. The court referred for that proposition to Associated Grocers Co-operative Ltd v Hubbard Properties Pty Ltd (at 341). In that case GJ Coles and Coy Ltd ("Coles") had been joined as a defendant following a trial, and pending appeal, where a notice of cross appeal directly challenged a purported agreement for lease between Hubbards and Coles. This was because, while the plaintiff did not seek relief against Coles, the "relief it sought against Hubbards in the action and in the cross-appeal would, if granted, quite plainly affect Coles to the detriment of Coles": Associated Grocers Co-operative Ltd v Hubbard Properties Pty Ltd (at 341). 52The statement in News Ltd to which I have referred was made in the context of the court determining whether orders made in the absence of persons which affected their interests "in a direct and substantial way" (News Ltd, at 527) should be set aside. They do not limit the inquiry the court conducts when determining by whom costs should be paid. That inquiry, as the following discussion makes apparent, has a wider purview.

Costs 53Subject to any limitations contained in statute or the rules of the court costs are in the discretion of the court, which has full power to determine by whom, to whom and to what extent costs are to be paid: s 98(1), Civil Procedure Act. 54Section 98(1)(a) and (b) of the Civil Procedure Act confers a wide discretion on the court in determining what costs orders should be made. The power conferred by s 98 must "be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent ... [and] subject to such considerations, the discretion conferred is ... unconfined except in so far as 'the subject matter and the scope and purpose' of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be "definitely extraneous to any objects the legislature could have had in view: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 ("Oshlack") (at [22]) per Gaudron and Gummow JJ. 55The exercise of the costs discretion takes into account the contextual circumstances of the litigation and the conduct of the parties: Kazar (Liquidator) v Kargarian; Re Frontier Architects Pty Ltd (in liq) [2011] FCAFC 136; (2011) 197 FCR 113 (at [9]) per Greenwood and Rares JJ; see also Peters v Peters (1907) 7 SR (NSW) 398 (at 399) per Street J. 56UCPR 42.1 provides for the general rule that costs follow the event. There are few, if any, exceptions to this general rule other than conduct by the successful party which disentitles it to the beneficial exercise of the discretion: Oshlack (at [69] - [70]) per McHugh J. Mr Marshall did not contest this proposition or contend that the respondents had engaged in any disentitling conduct. His proposition, in substance, was that the general rule was satisfied by the costs order made against AT Air. 57Costs are not awarded by way of punishment of the unsuccessful party but, rather "are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings ...": Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 (at 543) per Mason CJ; Oshlack (at [67]); Mahenthirarasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201; (2008) 72 NSWLR 273 (at [8]) per Basten JA (Giles and Bell JJA agreeing) ("Mahenthirarasa (No 2"). This directs the inquiry as to what costs orders should be made primarily to the position of the successful party: Latoudis v Casey (at 542); Mahenthirarasa (No 2) (at [9]). 58Costs can be awarded on the ordinary basis or the indemnity basis: s 98(1)(c), Civil Procedure Act. An indemnity order may be made in circumstances involving relevant delinquency on the part of the unsuccessful party in order more adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part: Oshlack (at [44]) per Gaudron and Gummow JJ. Such "delinquency" includes continuing or defending proceedings which, properly advised, a party should have known had no chance of success. In such a case, it will be presumed that the party so acted "for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law": Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 (at 401) per Woodward J. 59UCPR 6.11 provides for the making of a submitting appearance by a defendant who intends to take no active part in proceedings and, accordingly, submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made "save as to costs". However the rules do not provide for the costs implications of a submitting appearance. In these circumstances, the contextual considerations to which I referred earlier take into account the role adopted by the parties to the proceedings: Mahenthirarasa (No 2) (at [7]) per Basten JA (Giles and Bell JJA agreeing).

Conclusion 60The appeal being from a decision the subject of a general discretion, an appellate court will only intervene where clear error has been shown of the nature identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. It is not enough that the appellate court considers that, if it had been in the position of the trial judge, it would have taken a different course: ibid. Rather, "a decision regarding costs will only be interfered with if the appellate court is satisfied that there is an identifiable error or if the exercise of the discretion was so unreasonable as to require the appellate court to substitute its own decision: Rasch Nominees Pty Ltd v Bartholomaeus [2013] SASCFC 105 (at [52]) per Stanley J (Gray and Sulan JJ agreeing). 61The appellant has not established error in the primary judge's decision at all, let alone of the nature of that required to warrant interference with a discretionary decision. The appellant's submissions, in my view, place too much weight on the fact that, in part, the Originating Process related to conduct the appellant purported to undertake as director of AT Air and too little on the fact that the orders sought in the Originating Process directly and personally affected the appellant and reflected his role in making the proceedings necessary. 62The appellant was undoubtedly a proper party to the proceedings as commenced - indeed, I do not understand Mr Marshall to submit to the contrary. He, or persons acting at his direction, removed the Aircraft and relocated them to other premises to which they denied the respondents access. Prima facie, and on the premise established by the primary judge's declaration that the Aircraft were at all times Wingaway's property, he was guilty of conversion and potentially in breach of his director's duties in a manner exposing him to liability under the civil penalty provisions of the Corporations Act. 63Thus, in elaboration of the last point, the first respondent asserted both in correspondence with the appellant's solicitors and his affidavit in support of the application that the removal of the Aircraft was damaging Wingaway's business. Sections 180 - 183 of the Corporations Act to which the first respondent referred in his affidavit are each civil penalty provisions, contravention of which can sound, at least, in the court making a compensation order against the contravenor: s 1317H Corporations Act. Thus the first respondent's assertion that the appellant had breached those provisions of the Corporations Act and the reference to s 1317H of that Act in the Originating Process foreshadowed an application for compensation orders against him, I assume in respect to any business losses flowing from the wrongful removal of the Aircraft. 64The appellant actively resisted the proceedings insofar as they related to the liability issue as to the ownership of the Aircraft. While the consent orders resulted in the return of the Aircraft, the appellant and AT Air did not, at that stage, concede the issue of the appellant and AT Air's assertion of the latter's title to them. So far as the respondents were formally aware up until 3 July 2012 when the submitting appearance was served, the appellant was defending the proceedings. 65This has a greater significance than Mr Marshall's submissions acknowledge. It was critical to the appellant's potential downstream liability, whether for damages for conversion or a s 1317H compensation order, to establish AT Air's title to the Aircraft. Thus the affidavit he swore on 8 June, and that he presumably instructed his solicitors to obtain from Mr McCarthy, conveyed the impression that he was defending the proceedings both personally and on AT Air's behalf. 66The service of the appellant's submitting appearance, and then AT Air's submitting appearance on 9 July 2012, changed the landscape of the litigation. As far as the papers reveal, prior to that date, the respondents were proceeding with their claim to all the relief set out in the Originating Process. Once both parties submitted to the ownership issue which the respondents clearly viewed as the principal claim for relief, it was expedient to ask the primary judge to deal with that issue then, rather than await the 3 day trial which had been fixed to commence later that year and, once the declarations of title were obtained, not to proceed with the balance of the claims. The appellant remained a proper party to the proceedings until their final disposition. 67The primary judge was entitled, however, to take the "wider claims" in the Originating Process into account (at [6]) when determining to order the appellant to pay costs. They formed part of the contextual circumstances of the litigation. They highlighted the appellant's potential personal responsibility in relation to the removal of the Aircraft and the role he had personally played in making the proceedings necessary. Mr Marshall's submission that the appellant acted as AT Air's director at all relevant times misses the point. The appellant was exposed to potential personal liability both in tort and pursuant to the Corporations Act. He cannot hide behind the corporate veil to contend otherwise. 68Next, the appellant cannot rely on the verbal communication of the filing of the submitting appearance. As I have said, UCPR 10.1(1) required that document to be served on them "as soon as practicable". Failure to comply with that rule was relevant to the respondents' understanding of the appellant and AT Air's attitude to the proceedings. Until formally served, the respondents were entitled to take the view, confirmed by the notation on the appellant and Mr McCarthy's affidavit, that both defendants maintained their opposition to the relief sought in the Originating Process. Having regard to the appellant's personal interest in asserting AT Air's title to the Aircraft, the respondents were entitled to regard that notation as confirming his personal opposition to the declaratory relief as to title, as well as to the orders sought against him. 69Thus, in my view, the primary judge did not err in exercising his discretion to determine that the appellant, as well as AT Air, should be ordered to pay the costs of the proceedings. 70Insofar as indemnity costs are concerned, Mr Marshall conceded that the primary judge's conclusion that neither the appellant or AT Air "could, properly advised, have considered that AT Air Group held title to the aircraft" was uncontroversial having regard to the way the costs argument proceeded. He did not seek to identify any error in principle in the primary judge's application of the authorities to the effect that, in such circumstances, an indemnity costs order may be warranted. The appellant has not identified any error in his Honour's exercise of his discretion to make an indemnity costs order.

Orders 71I propose the following orders: (1)Grant leave to appeal. (2)Appellant to file the notice of appeal in the form of the draft appearing at tab 4 of the White Book within 14 days. (3)Appeal dismissed with costs. 72BASTEN JA: The first respondent, Michael Gregory Jones, is the liquidator of the second respondent, Wingaway Air Pty Ltd (In liq) ("Wingaway"), and administrator of the third respondent, Heron Airlines Travel Pty Ltd (subject to deed of company arrangement) ("Heron"). (Wingaway is the relevant entity for present purposes.) Mr Jones was originally appointed the administrator of Wingaway on 9 February 2012. At an earlier time, the applicant, Ross Edward Seller, had been a director of Wingaway. He was not a director at the time of Mr Jones' appointment as administrator. He was, however, and remained, a director and the controller of AT Air Group Pty Ltd ("ATAG") which was the sole shareholder of Wingaway. On 25 January 2012 the applicant prepared a resolution in the name of Wingaway, declaring a dividend to ATAG. According to an affidavit filed in proceedings in the Equity Division and dated 8 June 2012, Mr Seller intended the dividend to be satisfied by distribution of assets in specie by Wingaway to ATAG. 73The matters set out above are sufficient to place in context the conduct which underlay the present litigation, namely the transfer, on 16 May 2012, of two aircraft from a hangar used by Wingaway at Bankstown Airport to a hangar leased by ATAG. The legality of that transfer is not in issue: on 18 May 2012 Mr Jones commenced proceedings in the Equity Division seeking a declaration that there had been no legally valid transfer of the aircraft, of which Wingaway was the registered owner. A declaration to that effect was made by Black J on 9 July 2012, in effect without opposition from Mr Seller or ATAG, the latter being by then in provisional liquidation. 74The present application for leave to appeal is not concerned with the substantive orders made on 9 July 2012, but relates to costs orders made by Black J on 3 September 2012: In the matter of Wingaway Air Pty Limited (Administrator Appointed) and In the matter of Heron Airlines Travel Pty Limited (Administrator Appointed). The orders made were as follows: "1. The Defendants each pay the Plaintiffs' costs of the proceedings up to and including 9 July 2012 on an indemnity basis, as agreed or as assessed. 2. The First Defendant pay the Plaintiff's costs of and incidental to their application for costs against him and the hearing on 31 July 2012." 75The reference in the second order to the first defendant is a reference to Mr Seller; the reference to "the Plaintiff's costs" is a typographical error and should be understood as a reference to the plaintiffs' costs. Mr Seller now seeks leave to appeal against so much of those orders as imposed liability on him for the costs of the proceedings. 76In order to appreciate the circumstances in which the proceedings were commenced, it is necessary to provide some further factual background and a brief procedural history with respect to the proceedings in the Equity Division. Factual background 77When Mr Jones was appointed administrator on 9 February 2012, of both Wingaway and Heron, he continued to operate the businesses so that they could be sold as a going concern. Wingaway provided transfers of patients to hospitals within New South Wales; Heron operated an aerial tour business. Steps were taken to invite offers to purchase the businesses and a sale agreement was executed on 15 May 2012. The assets sold by Wingaway pursuant to the sale agreement included nine aircraft. 78On 16 May 2012, Mr Seller, together with a security guard and a locksmith, entered the premises operated by Wingaway and Heron at Bankstown Airport and changed the locks. On Mr Seller's instructions, the security guard refused entry to the premises by company staff. Mr Seller then relocated two aircraft to a hangar at Drover Road, Bankstown. According to an affidavit sworn by Mr Jones on 18 May 2012, in support of an application for interlocutory relief, Wingaway was obliged under the sale agreement to deliver possession of the aircraft to the purchaser on 29 May 2012. Mr Jones also expressed concern that he would not be able to continue to operate the business without the aircraft. Procedural background 79The originating process issued on 18 May 2012 named both Mr Seller and ATAG as defendants. It sought interim orders requiring that each of them deliver up possession of the two aircraft, together with orders that they not interfere with the plaintiffs' possession, control or use of the aircraft pending further order. By way of final orders the plaintiffs sought declarations that there was no legally valid transfer of the aircraft from Wingaway to ATAG on or about 25 January 2012, that Wingaway is the owner of the aircraft and an order that the defendants "return title and possession of the aircraft" to Wingaway and not interfere with the plaintiffs' possession, control or use of the aircraft. There was also an order for compensation sought pursuant to s 1317H of the Corporations Act 2001 (Cth). 80Prior to the commencement of the proceedings, ERA Legal (the solicitors for the administrator) wrote to Bartier Perry, as solicitors for Mr Seller. The letter alleged that Mr Seller took possession of the aircraft on the morning of 16 May and removed them to another location. The letter concluded with a demand that the aircraft be returned, failing which proceedings were threatened for urgent injunctive relief and compensation, noting that "a copy of this letter will be tendered when costs are sought against your client personally on the full indemnity basis". 81By letter dated the same day, Bartier Perry responded, noting that they acted for Avtex Pty Ltd and Mr Seller. Avtex was a sister company of Wingaway and was apparently the lessee of the premises at Bankstown Airport where the aircraft were kept. The letter did not suggest that Bartier Perry acted for ATAG. However, on instructions from "our client" (who must have been Mr Seller) the solicitors stated that "two aircraft have been moved to another facility at Bankstown airport, as those aircraft are property of AT Airgroup Pty Limited, which has authorised our client to do so". 82By letter dated 17 May 2012, Bartier Perry made a number of propositions in relation to the aircraft "which our client, AT Air Group Pty Limited, asserts belong to it". 83On 21 May 2012 both Mr Seller and ATAG appeared by counsel before Brereton J, at which time orders were made by consent allowing for the return of the aircraft. Directions were given for the filing of evidence and the matter was provisionally fixed for a three day hearing commencing on 18 July 2012. 84On 6 June 2012 Mr Seller filed a notice of appearance, submitting to orders except as to costs. The appearance was not served until 3 July 2012 and no explanation was given for the delay in service. Significantly, however, on 8 June 2012 (two days after filing the submitting appearance) a lengthy affidavit by Mr Seller was filed "for the defendants". A second affidavit, sworn on 13 June 2012 by Mr Patrick McCarthy, the accountant for companies including Wingaway and Heron (until 8 February 2012) and ATAG and Avtex, was also filed for the defendants. The latter affidavit set out an account of the financial affairs of Wingaway and expressed opinions as to the ability of Wingaway to declare a dividend resulting from a revaluation of its assets, which might be satisfied by an in specie payment, not involving cash. The apparent purpose of the affidavits was to justify the declaration of the dividend and the entitlement of ATAG to the aircraft removed by Mr Seller to its possession on 16 May. 85Although ATAG had filed a proof of debt dated 9 February 2012 in the liquidation of Wingaway, that document included the full amount of the dividend and no allowance was made for any transfer of aircraft in specie. The affidavits of Mr Seller and Mr McCarthy did not suggest that there had been a transfer of ownership of the aircraft. The Civil Aviation Safety Authority register recorded the aircraft as owned by Wingaway on 15 May 2012. 86ATAG was placed into provisional liquidation on 29 June 2012. At the hearing on 9 July, ATAG filed an amended notice of appearance submitting to the orders of the Court. Application for leave to appeal 87The present application is brought by Mr Seller alone: there is, accordingly, no challenge to the order against ATAG requiring that it pay costs on an indemnity basis. The question is whether such an order was properly made against Mr Seller. His argument was based on two propositions: first, that no order (other than as to costs) was made against him and, secondly, that such involvement as he had in the removal of the aircraft was limited to his role as director of ATAG, seeking to assert its claim to ownership of the aircraft. In support of those submissions, counsel for the applicant noted acceptance by the primary judge that ATAG's conduct was initiated by Mr Seller as its sole director and that Mr Seller's conduct was undertaken as a director of ATAG, on behalf of the company: Judgment at [5]. Having accepted those propositions, the applicant submitted that it was erroneous for the trial judge to conclude "that the conduct of Mr Seller and AT Air Group in asserting title to the aircraft by AT Air Group and taking possession of the aircraft and the lateness of their submission to the orders sought are sufficient to support an order for costs against both Mr Seller and AT Air Group": at [6]. 88Leaving to one side the submitting appearances, it is not correct to say that the liability in costs was imposed on Mr Seller as a director of a company. The liability was imposed upon him as a party to proceedings to which, as he readily conceded in argument, he had been properly joined. His involvement in the conduct which involved the wrongful taking of possession of the two aircraft was undisputed. His attempt to justify that conduct as having some basis in law (by filing affidavits) was ultimately abandoned. As counsel for the respondents submitted, the fact that he alleged that he physically took control of the aircraft because he had authority from a third party which was the true owner, provided no excuse if he could not establish the entitlement of the third party. The fact that he was a director of the third party (ATAG) merely meant that it was he who gave authority, as the mind and agent of the company, to himself to act on behalf of the company. 89Nor was it ultimately true to say that no substantive relief was granted against him personally. The declaration that Wingaway was the owner of the aircraft was an order binding all parties to the proceeding and might thus have formed the basis for further injunctive relief against both Mr Seller and ATAG, had that been pursued. Indeed, the submitting appearance filed by Mr Seller constituted a recognition by him that appropriate orders (other than as to costs) could properly be made against him. 90One is therefore left with the question as to why, in the proper exercise of the trial court's discretion, the plaintiffs could not recover their costs from both defendants, in circumstances where both had ultimately conceded the entitlement of the plaintiffs to relief. 91Up until 3 July, so far as the plaintiffs were aware, Mr Seller was actively resisting the final relief sought. Between 3 July and 9 July, the position may have been ambiguous, because ATAG was in provisional liquidation and not under the control of Mr Seller. However, no issue was raised as to the appropriateness of the order with respect to the period from 3 July to 9 July. 92In any event, the fact that one party has submitted will not necessarily render it inappropriate to make a costs order against it, although it will be necessary to ensure that the party has an opportunity to be heard before such an order is made. Where one party, by its conduct, has made it necessary for the other party to seek relief and incur costs in doing so, it may be appropriate that the first party pay the costs of the latter, even though it does not oppose the outcome. Thus, in Mahenthirarasa v State of Rail Authority of New South Wales [No 2] [2008] NSWCA 201; 72 NSWLR 273, a respondent who had successfully opposed an appeal in the Worker's Compensation Commission was required to pay the costs of the appeal to the Supreme Court, although it had filed a submitting appearance in the Court: at [12]. In the present case, it was the activities of Mr Seller which had created the need for the litigation: in those circumstances there was no error on the part of the primary judge in making Mr Seller, as a party to the proceedings, jointly and severally liable for the costs of the proceedings. 93In written submissions, it was said that Mr Seller "has done nothing delinquent in the conduct of the proceedings to warrant any extraordinary order for costs against him, as it were, as a non-party, especially indemnity costs": paragraph 37. In the course of oral argument, counsel agreed there was no challenge to the order for indemnity costs as against ATAG, but submitted that it was an inappropriate order with respect to Mr Seller "because he wasn't the proper contradictor and didn't seek to interfere with the legal process at a time when the proper contradictor decided not to defend its case": Tcpt, 24/04/13, p 13(48). 94The denial of any responsibility for costs has been rejected. To the extent that the applicant sought to maintain a challenge to the order for costs assessed on the indemnity basis, that submission should also be rejected. The position of Mr Seller was not better than that of ATAG: both of them, properly advised would have known that their conduct had no lawful justification and should have capitulated before the proceedings were commenced. That was, in effect, the finding of the primary judge. Accordingly, the orders made by him must stand. 95Counsel for the respondent submitted that the application for leave to appeal should be dismissed. Because the matter turned upon a short point of law, as to which full argument was heard, it is appropriate to grant leave, but to dismiss the appeal. The applicant must pay the respondents' costs. Orders 96The Court should make the following orders: (1) Grant the applicant leave to appeal against the orders made by Black J in the Equity Division on 3 September 2012. (2) Dismiss the appeal. (3) Order that the applicant pay the respondents' costs of the proceedings in this Court. 97WARD JA: I have had the opportunity of reading in draft the judgments of McColl JA and Basten JA. I agree that, for the reasons expressed by each, leave to appeal should be granted and the appeal dismissed with costs. I agree with the orders proposed by McColl JA.

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(2006) 147 LGERA 330

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