Sensis Pty Ltd v Bivami Pty Ltd

AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS CUSTODIAN FOR HYPERION PROPERTIES SYNDICATES LIMITED

WESTPAC BANKING CORPORATION LIMITED ACN 007 457 141

AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS CUSTODIAN FOR HYPERION PROPERTIES SYNDICATES LIMITED

JUDGE: GRIFFITHS J DATE: 18 DECEMBER 2012 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 3 December 2012 I delivered judgment on whether Australian Executor Trustees Limited (AETL) as custodian for Hyperion Property Syndicates Limited should be joined as a party, whether interlocutory injunctions obtained by the applicants should be dissolved and fresh interlocutory injunctions granted, whether leave should be granted to AETL to file a cross-claim and whether separate questions ought to be heard and determined. Costs were reserved and I invited the parties to file and serve brief written submissions on the issue of costs. The parties were content for the matter to be dealt with on the papers. 2 AETL seeks orders that the applicants pay its costs immediately and on an indemnity basis of: (a) its interlocutory application filed on 15 November 2012 and amended on 29 November 2012; and (b) the applicants' interlocutory application dated 19 November 2012. 3 AETL's amended application referred to in [2(a)] above sought its joinder as a party, dissolution of the interlocutory injunctions granted by Rares J and myself and leave to file a cross-claim. The applicants' interlocutory application referred to in [2(b)] above sought the hearing of separate questions. 4 I do not consider that this is an appropriate case for an indemnity costs order. The relevant principles were recently summarised in SPAR Licensing Pty Limited v MIS QLD Pty Ltd (No 3) [2012] FCA 1318 at [5]-[7]. I accept the applicants' submission that, even though AETL was successful in having the interlocutory injunctions dissolved on the grounds of material non-disclosure, there was no relevant delinquency on the applicants' part as to warrant an indemnity costs order. The non-disclosure was most unfortunate and proper instructions should have been obtained before the relevant submissions were made. But account also has to be taken of the urgency with which the matter came before the Court and the swiftness with which the applicants acted to bring their mistake to the attention of all the parties and the Court when it was discovered. 5 As noted above, part of the relief sought by AETL in its amended interlocutory application related to what turned out to be its successful application to be joined as a party in the proceedings. AETL seeks indemnity costs on the basis that this application was "resisted" by the applicants. AETL adds that it made it clear in a letter dated 27 November 2012 to the applicants that it would seek indemnity costs if the applicants did not cease to oppose AETL's joinder application. I consider that little if any weight should be given to this warning letter. The applicants' subsequent participation was not unreasonable. 6 As the applicants point out, and as the transcript confirms, the applicants neither consented to, nor opposed, AETL's joinder application. In those circumstances each party should bear its own costs in respect of that aspect of AETL's interlocutory application. The same applies to that aspect of the interlocutory application concerning leave to file the cross-claim, which also was not opposed by the applicants. 7 There is no dispute that the applicants should pay the costs of the second respondent (Westpac) in respect of their applications for injunctive relief heard on both 13 and 29 November 2012. 8 AETL also seeks an order that the applicants pay its costs of the applicants' unsuccessful application to have separate questions heard and determined. The applicants do not resist such an order being made. 9 AETL asks that the costs orders in its favour be payable immediately. They rely on the Court's broad discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) and the note to Rule 40.13 of the Federal Court Rules 2011 (Cth). They say further that such an order should be made having regard to the applicants' "unreasonable conduct" in respect of the material non-disclosure and also because the dissolution of the interlocutory injunctions was a self-contained part of the proceedings. Helpful guidance on the Court's discretion to order that certain costs be payable forthwith is given in the authorities set out by Edmonds J in Meaden v Bell Potter Securities Limited (No 3) [2012] FCA 1394 at [2]. 10 I do not propose to make any such order. As noted above the mistake was most unfortunate, but I specifically accepted that there was no deliberate attempt by the applicants to mislead the Court. Nor do I accept that the dissolution of the interlocutory injunctions constitutes a sufficiently clear or discrete aspect for the proceedings to warrant such an order. Finally, this is not a case where such an order is appropriate because the final disposition of the case is a long way off. 11 For all these reasons, I propose to make the following orders: 1. the applicants are to pay the costs of the second respondent in respect of the applicants' applications for injunctive relief heard on 13 and 29 November 2012; 2. the applicants are to pay the third respondent's costs of that aspect of the interlocutory application filed by AETL on 15 November 2012 and amended on 29 November 2012 relating to the dissolution of the interlocutory injunctions made by Rares J on 12 November 2012 and Griffiths J on 13 November 2012; 3. each party is to bear its own costs in respect of those parts of the interlocutory application filed by AETL on 15 November 2012 and amended on 29 November 2012 relating to AETL's application to be joined as a party and for leave to file its cross-claim; and 4. the applicants are to pay the third respondent's costs of the applicants' interlocutory application dated 19 November 2012 seeking determination of separate questions. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.