Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2013] NSWSC 616 | Case summary

Determination 28In Tobin v Ezekiel (No 2) [2012] NSWCA 409, at [7], the Court wrote: "The circumstances in which the power to reopen a final judgment may be exercised have been addressed by the High Court in a number of cases including Wentworth v Woollahra Municipal Council [1982] HCA 41; 149 CLR 672; State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; 150 CLR 29; Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256; Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300; Elliott v The Queen [2007] HCA 51; 234 CLR 38; and Aktas v Westpac Banking Corporation (No 2) [2010] HCA 47; 241 CLR 570. That power is exercised with great caution because of the public interest in maintaining the finality of litigation. It may be exercised if it can be shown that by accident and without fault on the part of the applicant, he or she has not been heard: per Mason ACJ, Wilson and Brennan JJ in Wentworth at 684. However, the exercise of the power is not confined to circumstances where there has been a denial of a fair hearing. It may be used to rectify an apparent error arising from a miscarriage in the Court's judgment because it has proceeded on a misapprehension of the relevant facts or law: per Mason CJ in Autodesk Inc at 302; per French CJ, Gummow and Hayne JJ in Aktas at [6]. However, the power is not to be exercised to enable the re-agitating of arguments already considered or because the party seeking the re-hearing has "failed to present the argument in all its aspects or as well as it might have been put". The purpose of the jurisdiction "is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases": per Mason CJ in Autodesk Inc at 303." 29In determining whether I should set aside, or vary, the order for costs previously made, I remember that the central question is whether it is unjust to allow the order made to stand: Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 at 243-4; Northey v Bega Valley Shire Council [2012] NSWCA 28, at [16]. 30There are two preliminary matters with which I should deal. 31First, Tanamerah and Mr Tydeman are wrong to submit that Tibra did not succeed on its notice of motion and that the notice of motion filed by Tibra had been dismissed. As will be obvious from a comparison of Paragraph 1 of the reasons for judgment and the orders made, the only aspect that did not warrant an order sought by Tibra being made, was in relation to the relief pursuant to Uniform Civil Procedure Rules 2005 ("UCPR") rule 13.4, that the proceedings by Mr Tydeman be dismissed. It was unnecessary to make such an order because there was no dispute about what I stated, and to what I referred, at Paragraph [23] of the reasons for judgment, which Paragraph I have set out earlier in these reasons. 32On this topic, I also refer to what I said at Paragraph [88] of the reasons: "As stated, there is no dispute that Mr Tydeman has not identified any cause of action that he has against the Defendant and he does not suggest any cause of action. On this basis, the Defendant says that UCPR rule 6.29 enables the court to remove him as a plaintiff because he has been improperly, or unnecessarily, joined, and UCPR rule 13.4 enables the court to dismiss the proceedings so far as they relate to him because no cause of action is disclosed." 33I am satisfied that Tibra succeeded in obtaining the relief that it sought in its notice of motion and that Mr Tydeman and Tanamerah failed in the relief sought in his, and its, notice of motion. 34Second, I do not accept that the notice of motion filed on behalf of Mr Tydeman was one brought "solely because the Court had directed him to do so and this direction was based on the Defendant's encouragement to the Court and in various written communications that such an application must be made". 35As I said at Paragraphs [4] and [5] of the reasons for judgment: "Whilst trying to ascertain the real issues in dispute between the parties on Tibra's notice of motion, it became clear that Mr Tydeman, who is, and at all relevant times has been, a director of Tanamerah, would seek, in the event that Tibra's application was successful, an order, under s 14 Civil Procedure Act 2005, that UCPR rule 7.1(2) and (3), which rules, in summary, require a company within the meaning of the Corporations Act 2001 (Cth) to commence, and carry on, proceedings in any court by a solicitor, or by a director of the company, but only if the director is also a plaintiff in the proceedings, be dispensed with. I directed Mr Tydeman to serve any notice of motion seeking such an order, and any affidavit in support thereof, by 31 October 2012, with which direction he complied." 36The notice of motion did not have to be filed. Mr Tydeman was given the opportunity to file it, s 14 of the Civil Procedure Act clearly being a relevant matter upon which reliance might be placed. Had he not filed the notice of motion, the Court would have been entitled to conclude that no order under that section was being sought in the alternative. 37In my view, Mr Tydeman well appreciated that he did not have to rely upon the section. This is amply demonstrated by the conditional relief he sought, namely "[O]nly if [he] is denied from being a party to the proceedings ... then under Section 14 of the Civil Procedure Act". 38I turn now to a reconsideration of the costs order and whether it should be set aside or varied. No third party rights would be affected by the setting aside, or varying, the costs order that was made. 39The starting point in determining the question of costs is the Civil Procedure Act, s 98(1), which provides that subject to the rules of Court, and that, or any other, Act, costs are in the discretion of the Court. The discretion is broad but not unconfined. It is a judicial discretion to be exercised on a principled basis, that is to say, in accordance with the relevant legal principles. It enables an order to be made specifying by whom, to whom, and to what extent, costs are to be paid. 40UCPR rule 42.1 provides that "... If the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs". UCPR rule 42.2 provides that "unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis". 41Importantly, as was pointed out in May v Christodoulou, an earlier rule, UCPR rule 43.3, was repealed on 7 May 2010. That rule, relevantly, provided: "(1) ... the Court may not, in the exercise of its powers and discretions under s 98 of the Civil Procedure Act 2005, make any order for costs against a person who is not a party. (2) This rule does not limit the power of the Court: ... (e) to make an order for costs against a person who commences or carries on proceedings ... as an authorised director of a corporation ...". 42It is now quite clear that costs orders may be made against a non-party. The formulation of s 98 of the Civil Procedure Act in its terms means that what the High Court said in Knight v FP Special Assets Ltd (1992) 174 CLR 178, namely that a not relevantly distinguishable rule of the Queensland Supreme Court Rules permitting the costs of and incidental to all proceedings to be in the discretion of the court was wide enough to allow an order to be made against a non-party applies. Thus, the section is now wide enough to permit the Court to order costs against a non-party. But such an order is exceptional and has to be called for by considerations of justice in accordance with principles relating to awards of costs. 43As has been noted (albeit in another context), in Kazar (liquidator) v Kargarian; Re Frontier Architects Pty Ltd (in liq) [2011] FCAFC 136; (2011) 284 ALR 237, at [9] (by Greenwood and Rares JJ): "The exercise of the discretion takes account of all of the contextual circumstances of the litigation and the conduct of the parties. One aspect of the award of costs is a recognition that a party has been put to expense which, taking account of the merits as ultimately found on the trial of the action, might otherwise have been avoided. That consideration does not infuse the award of costs with any sense of penalty or punishment but simply recognises the compensatory nature of an award of costs, in context and according to principle. That is why an award of costs, although involving the exercise of a discretion, generally favours the successful party. As to the importance the community attaches to legal costs incurred of and incidental to the resolution of controversies before courts, see Clark v Cmr of Taxation [2010] FCA 415 at [90]; Uniline Australia Ltd v S Briggs Pty Ltd (No 2) [2009] FCA 920; (2009) 82 IPR 56 at [38]; and, Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [130] to [132]." 44Ultimately, the Civil Procedure Act and the UCPR require the Court to make such costs order as it thinks just in the particular circumstances of the case: Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343 at [10]. 45In Ohn v Walton (1995) 36 NSWLR 77, at 79, Gleeson CJ said: "The usual rationale of making a costs order is that it is just and reasonable that the successful party should be reimbursed for costs incurred, in the absence of grounds connected with the charge or conduct of the proceedings which make it unjust or unreasonable that there should be such reimbursement." 46As has recently been repeated by Black J in In the matter of Employ (No. 96) Pty Limited (in liquidation) [2013] NSWSC 456, at [7]: "The principles underlying an award of costs include that costs are awarded to compensate the successful party for the expense of being put to the necessity of litigation; a wholly successful defendant should ordinarily receive its costs unless good reason is shown to the contrary; and the discretion to order costs must be exercised judicially and not against the successful party except for some reason connected with the proceedings: Milne v Attorney-General (Tasmania) (1956) 95 CLR 460 at 477; Oschlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97-98 per McHugh J, at 129-123 per Kirby J; Ruddock v Vardalis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at 234. In Howard's Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5; (2010) 182 FCR 84, Gray J observed at [17] that: "The overriding principle that costs are in the discretion of the court can also be expressed in terms of the negative proposition that no rule or principle should be applied mechanically in the determination of the question where costs should lie in any particular case. Attention must always be paid to the particular circumstances of the individual case. The aim is to do substantial justice in relation to costs, based on the outcomes of the various issues in the proceeding, as between the entities that are parties to that proceeding."" 47I shall next deal with the submissions that Mr Tydeman was not a "party" to the proceedings. 48The word "party" is not defined in s 3, the definition section, of the Civil Procedure Act. Nor is the term defined in the UCPR. However, "Plaintiff" is relevantly defined as meaning "a person by whom proceedings are commenced". 49Mr Tydeman referred to s 56(7) of the Civil Procedure Act. So far as the section is concerned, "party to a civil dispute" means "a person who is involved in the dispute". He also referred to "civil dispute" as defined in s 18A to mean, relevantly to Part 2A of the Civil Procedure Act, "a dispute that may result in the commencement of civil proceedings". (Both the rule and the section relied upon have now been repealed.) 50In the Dictionary to the UCPR, an "active party" is relevantly defined, in relation to any proceedings, as meaning a party who has an address for service in the proceedings. In the Amended Statement of Claim, Mr Tydeman was described on the front sheet as "the Second Plaintiff". In the affidavit verifying the amended Statement of Claim, affirmed on 24 September 2012, he was also described as "the second Plaintiff". In "Contact Details for plaintiff acting in person or by authorised officer" Mr Tydeman was referred to as a director of Tanamerah and provided an address for service. 51"Opposite party" is defined in the Dictionary to mean "defendant (in relation to a plaintiff) and plaintiff (in relation to a defendant)". 52In Yakmor v Hamdoush (No 2) [2009] NSWCA 284; (2009) 76 NSWLR 148, a case dealing with the question whether a tutor was a "party" within UCPR rule 42.3, Giles JA, with whom Ipp and Tobias JJA agreed, wrote, at [39] - [41]; 155-156: "... in relation to costs some expansion of "party" from the plaintiff or defendant on the record has been recognised, albeit in other contexts. In Law Society of New South Wales v Jackson (1981) 1 NSWLR 730 it was held that the Law Society was a party within s 77(1) of the Legal Practitioners Act 1898 because, although it was not the complainant, it had taken part in the proceedings before the Statutory Committee to which that subsection related by appearing and actively participating. In ACP Magazines Pty Ltd v Motion [2000] NSWSC 1169 a subpoenaed company was held to be a party, principally by reason of a definition having the effect of including within a party a person against whom a claim for relief was made but also in reliance on Law Society of New South Wales v Jackson. In Victoria Legal Aid v The County Court of Victoria [2004] VSCA 113 a subpoenaed entity was regarded as a party to criminal proceedings within s 25 of the Crimes (Criminal Trials) Act 1999 (Vic), principally because of a definition extending to any person served with notice of or attending at a hearing but also because (at [20]) the underlying purpose of providing for orders that practitioners pay costs due to the practitioners' wrongful acts indicated that the power should extend to the costs of a non-litigant. These cases were taken up in In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 879 in holding that a subpoenaed person and company were parties within r 42.3 of the Rules. One reason was that there was a claim for relief within s 22 of the Act and the subpoenaed person and company became parties by force of that provision. The other (at [14]) was that the cases showed that the concept of "party" was not confined to a person on the record in the proceedings. Cases decided on particular statutory provisions or rules provide only limited assistance in the present case. ..." 53It is quite clear that, in taking all of the steps that he did, Mr Tydeman sought to be a party to the proceedings because he and Tanamerah considered that it was necessary that he be a party (a Plaintiff). Until such time as orders were made, he was identified as a party to the proceedings in the Amended Statement of Claim. Had Tibra not filed a notice of motion, Mr Tydeman would have remained the second Plaintiff in the proceedings and Tanamerah would have been entitled to commence and carry on the proceedings without a solicitor. 54I do not accept the submission that Mr Tydeman was identified as a party by "mere error" in having named himself as the second Plaintiff. To the contrary, it was quite clear that he appreciated the effect of being named as a party to the proceedings and sought to rely upon the fact that he was so named in advancing the case that Tanamerah was not required to commence and carry on proceedings by a solicitor since he was a director, and also, a Plaintiff, in the proceedings. 55For example, the notice of motion filed on 31 October 2012 sought various forms of relief, but "[o]nly if [he] is denied from being a party to the proceedings ... then under Section 14 of the Civil Procedure Act, the first Plaintiff asks the Court to make an order to dispense with the Rules and permit [him] to commence and carry on these proceedings as the agent and representative of the First Plaintiff and Alexander Superannuation Fund". Mr Tydeman made clear that he sought a dispensing order "in the circumstance of ... last resort". 56Furthermore, in the affidavit affirmed by him in the Amended Statement of Claim, he deposed that "I am aware I may be liable to pay some or all of the costs of the proceedings". 57Ms Tydeman, in her capacity as a director of Tanamerah, also affirmed an affidavit in support of the Amended Statement of Claim, in which she referred to "Mr Tydeman's authority to stand and act as the self-represented Plaintiff in the proceedings that has not been revoked". 58All of the submissions made in opposition to the claim for relief sought by Tibra referred to "the Plaintiffs". 59I note that one basis for opposing the relief sought by Tibra was that Mr Tydeman submitted that UCPR rule 7.1 did not require him to have a personal cause of action against the Defendant in order for him to be a plaintiff in circumstances in which the corporation had a cause of action: see Paragraphs [37] and [98] of the reasons for judgment. 60I do not forget, also, the submissions that were made in the proceedings to determine the notices of motion, relating to UCPR rule 7.11(2) that "in proceedings relating to a trust, all trustees must be parties" and under rule 7.12(2) that "in proceedings relating to a trust all persons having a beneficial interest under the trust need not be parties but that the plaintiff may make parties of such persons as he or she thinks fit". In each case, Mr Tydeman sought to rely upon the rule to justify his involvement, as a party, in the proceedings. 61In this regard, I refer to what I said at Paragraph [144]: "In considering UCPR rule 7.11 and 7.12, I am of the view that the person who is sought to be joined should, in each case, be a necessary and proper party to the proceedings. As I have said, in this case, each Member's interest is being represented by Tanamerah and there is simply no need for Mr Tydeman to be joined as a party other than, so it would seem, to enable Tanamerah to be represented by a director when, under UCPR rule 7.1, it cannot be. Such a result is not one that would achieve the objects of the Civil Procedure Act." 62Finally, on this point, I refer to what was said by Samuels JA, with whom Reynolds and Mahoney JJA agreed, in Law Society of New South Wales v Jackson [1981] 1 NSWLR 730, at 735: "A party, essentially, is a person who takes part in legal proceedings and that is the definition to be found in Jowitt's Dictionary of English Law, at p 1302. It cannot reasonably be doubted that the Council took part in these proceedings." 63In my view, Mr Tydeman was a party to the proceedings. By opposing the notice of motion filed by Tibra, and by filing the notice of motion that he filed, he maintained, and continued to maintain, that he was a (second) "plaintiff" in the proceedings. He certainly "took part" in the proceedings because he participated in the proceedings for the purpose of seeking a favourable determination. It was not until the orders were made in the reasons for judgment, that he was no longer a Plaintiff in the proceedings. He was then removed as a party by the order that I made because I concluded he was neither a necessary, nor a proper, party to the litigation between Tanamerah and Tibra. 64Nor did Mr Tydeman, in his capacity as director of Tanamerah, purport to conduct proceedings "in the name of" that company. He purported to be a separate human Plaintiff with the result that there was a company Plaintiff and a director Plaintiff, thereby avoiding the need for Tanamerah to commence and carry on proceedings by a solicitor. 65Furthermore, in the absence of a dispensing order and without Mr Tydeman having been named as a Plaintiff, Tanamerah's obligation was to retain a solicitor to act for it. 66Neither Tanamerah, nor Mr Tydeman, has advanced any reasons that satisfy me that some other order should be made as to the whole, or any part, of the costs of the two notices of motion. In those circumstances, I do not set aside, or vary, the order for costs previously made. 67In case I am wrong, and Mr Tydeman was not a party to the proceedings until removed by my order, I turn then to what considerations should govern the exercise of a discretionary power in circumstances where a costs order is being considered as against a person who was not a party to the proceedings. 68Even if Mr Tydeman is correct that he merely made submissions on behalf of Tanamerah (which I do not accept), that does not prevent an order for costs being made against him personally. Yet, I remember that in May v Christodoulou, the majority in the Court of Appeal held that the fact that a director represents the company is not enough to justify the exercise of the power to award costs against the director personally. Sackville AJA, at [102]-[103], observed that: "Although a non-legally qualified director does not owe the same duties to the court as a legal practitioner, it is no doubt correct that the manner in which the director conducts legal proceedings on behalf of a company could justify a costs order against him or her personally. If, to take an example already given, the director repeatedly and flagrantly ignores court directions, thereby prolonging the proceedings and causing the other party to incur substantial and irrecoverable costs, a non-party costs order may well be appropriate. In this case, however, the primary Judge did not find that the appellant engaged in conduct that was so reprehensible or inappropriate that a non-party costs order should be made against him. The criticisms made of the appellant's conduct of the proceedings, if made in relation to a legal representative, would have fallen well short of the sort of conduct that justifies a costs order against a legal practitioner personally ... If every legal practitioner who attempted to adduce inadmissible evidence or who asked irrelevant questions was made the subject of adverse costs orders, the courts would do little but adjudicate costs applications." 69Even Handley AJA, in the minority, regarded as relevant to the exercise of the discretion to make an order for costs against the director, the fact that a director's involvement had prolonged the proceedings. 70In Redman v JGS Investment Holdings Pty Ltd; Redman v Arraj [2012] NSWSC 1575, Black J, dealing with a notice of motion for the joinder of a company as a party to the proceedings, noted, in respect of costs sought against directors who had appeared, at [5] - [7], wrote: "The majority directors' contention that the opposition to the motion was by JGS, not by them, does not seem to me to reflect the reality of the conduct of the motion before me. There was no suggestion that JGS had taken any formal corporate step to authorise opposition to the motion. Any costs order would not be made against the majority directors as merely the "directors of JGS", but rather in their capacity as unsuccessful opponents to the relief sought in the motion. However, even if the opposition by the majority directors were treated as analogous to the situation where a director appears in proceedings to represent a corporation's interests, the Court would have power to make an order for costs against them in an appropriate case. I should briefly refer to several relevant authorities, although the parties did not address them in submissions. The question whether the court should make a costs order against a director who carries on proceedings on behalf of a company is determined by reference to the factors identified by the High Court in Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, including whether the non-party has played an active part in the conduct of the litigation and has an interest in its subject matter; see also Yates v Boland [2000] FCA 1895. In FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340, at [210] Basten JA (with whom Beazley and Giles JJA agreed) noted that the exceptions to the general rule that an order for costs is only made against a party to the litigation should not be allowed to expand so as to undermine the rule itself, and noted relevant factors including that the unsuccessful party was the moving party and whether the conduct of the litigation was unreasonable. In May v Christodoulou [2011] NSWCA 75, Sackville AJA observed at [102]-[103] that a relevant question was whether the non-party or director had engaged in conduct that was so inappropriate that a costs order should be made against him, and Handley AJA (in the minority) regarded the fact that a director's involvement had prolonged the proceedings to be relevant to the exercise of the discretion. In my view, the majority directors should be ordered to pay the costs of the joinder motion in the Arraj proceedings. They actively sought to be heard and were heard in opposition to the orders sought in that motion and the motion would otherwise not have been opposed. The need for substantive argument as to that matter arose only because they opposed that order and they were ultimately unsuccessful in their opposition to that order. I consider that the circumstances of non-parties to the proceedings seeking to be heard in opposition to a joinder of a necessary or proper party to the proceedings, where the parties to the proceedings did not oppose that joinder, are sufficient to warrant an order for costs against the majority directors in that regard." 71At all times, Mr Tydeman sought to be, and was, heard, in opposition to Tibra's notice of motion which related to his involvement in the proceedings. In addition, he advanced a case in support of the notice of motion that he had filed and made submissions why an order under s 14 of the Civil Procedure Act ought to be made. (I previously referred to the length and detail of submissions that were filed and the fact that the hearing of the two notices of motion took almost one day.) 72Both Tanamerah, and Mr Tydeman, was each comprehensively unsuccessful in maintaining its, and his, opposition to Tibra's notice of motion, and also in maintaining that the relevant rules should be dispensed with. 73Before filing the Amended Statement of Claim, Tanamerah was aware of UCPR rule 7.1, which provided that a company within the meaning of the Corporations Act 2001 of the Commonwealth may commence and carry on proceedings in any court by a solicitor or by a director of the company and in the case of proceedings in the Supreme Court, by a director only if the director is also a plaintiff in the proceedings. Unless Mr Tydeman, as a director, was also named as a Plaintiff in the proceedings, the requirement of the rule would not be satisfied. An Amended Statement of Claim was then filed naming him as a Plaintiff in the proceedings, in order to take advantage of the rule. He acknowledged in that amended Statement of Claim, the possibility that he may be liable for costs (although that acknowledgement was in the context of the proceedings). 74It was only to avoid the need for Tanamerah to commence, and carry on, the proceedings in the Supreme Court by a solicitor, that Mr Tydeman was joined as a party to the proceedings, and he sought to maintain that position so that Tanamerah did not have to retain a solicitor. This was not because there was a financial constraint preventing Tanamerah from obtaining the assistance of a solicitor. Mr Tydeman informed me that there was not. He did not suggest that Tanamerah was unable to pay for legal representation, (although, subsequently, he stated that the directors would have to contribute to the costs). Nor did he say that the desire to have him represent Tanamerah arose, otherwise, from necessity rather than choice. He said, in relation to the proceedings, that he was "not trusting" of lawyers. 75So it is not thought that I have overlooked it, I do not accept the following submissions made on the current application: "Ms Tydeman, Member 1, has no right of access to any funds of the superfund held by her trustee in Member 1's ledger to fund litigation because there are strict requirements set down by APRA pertaining to any self-managed superannuation fund. Litigation expenses to retain a solicitor would not satisfy the requisite test for the superfund. Accordingly, under this unique trust structure of ASF, which does not appear to have been previously considered by any Court, must not be confused with any other type of trust structure (e.g., discretionary or unit). Also, there is no obligation or right for the directors to lend any funds to the trustee for any purpose whatsoever, including to fund litigation. The directors are prohibited from obtaining any benefit from the superannuation (in any respect). Accordingly, because Tanamerah's financial position is devoid of any funds or assets (in the company's own right), the company cannot enter into any scheme of arrangement on a commercial basis to borrow any money because it will never have the capacity to repay that liability." 76None of these matters was put previously and they appear, for the first time, in the submissions of 22 March 2013. I refer to Mr Tydeman's, and Ms Tydeman's, acknowledgement regarding costs identified in Paragraphs [24] and [25] of the reasons for judgment. I also refer to Paragraph [49] of the reasons for judgment. 77Moreover, it would rarely be just for a person, said to be representing another party for the purposes of an application to the Court, as well as the other party said to be represented, to be able to do so with no risk as to costs to himself, or the other party, should the application fail. 78None of these matters advanced should prevent Tibra from obtaining an order for its costs of the notices of motion. To the contrary, at various parts of the reasons for judgment, I have noted the steps taken by the legal representatives for Tibra to inform Tanamerah and Mr Tydeman of relevant considerations (e.g. s 14 of the Civil Procedure Act) that would apply in respect of its notice of motion. 79It should also not be forgotten, in relation to the determination of costs, that I referred, at Paragraph [54], to some of the submissions made, which I was satisfied were not supported by the evidence presented on the notices of motion and I concluded, at Paragraph [55], that the criticisms made of Tibra's solicitors and counsel seemed to be unjustified. 80In these circumstances, I remain satisfied that it is appropriate to make an order for costs against both Tanamerah and against Mr Tydeman. Accordingly, I do not propose to set aside, or vary, the costs order previously made. 81In summary, then, if the question is where do the interests of justice lie, I would assess the position as follows - until the order was made removing Mr Tydeman, he was a party to the proceedings. In any event, all of the circumstances, as well as s 98 and UCPR rule 42.1, justify an order in favour of Tibra being made for the costs of the notices of motion since it was successful. Tibra was put to expense in litigating the issue; it would appear that Tanamerah and Mr Tydeman were not. 82Even if Mr Tydeman was not a party to the proceedings, his conduct, and that of Tanamerah, in opposing the grant of relief sought, and maintaining an entitlement to rely on s 14 of the Civil Procedure Act, whether as a last resort or otherwise, is relevant. Tibra was forced to litigate the issue and to file its notice of motion and oppose the relief sought in the notice of motion filed by Mr Tydeman and Tanamerah. Moreover, the reason for not engaging a solicitor was personal to Mr Tydeman and Tanamerah. All these reasons justify the order for costs that I made. 83In all the circumstances, the interests of justice do not require me to set aside, or vary, the costs order made by me in the reasons for judgment. 84In relation to the question of costs of this application, Tanamerah, and Mr Tydeman, has each comprehensively failed. It is appropriate that it, and he, should pay the costs of the application to set aside, or vary the costs order previously made since Tibra has been put to expense, once again, in responding to the application. However, since Bergin CJ in Eq dealt with the issue of costs before her, the costs of this application to which I have referred should be limited to the costs and disbursements incurred in, and associated with, filing the submissions in reply and attending to take judgment (if Tibra does so by a legal representative). 85I order that the application brought by Tanamerah and Mr Tydeman to set aside or vary the costs order be dismissed with costs (limited as set out above). 86As Mr Tydeman is no longer a party to the proceedings, there is no reason why the costs orders made against him should not be able to be enforced forthwith. 87In relation to Tanamerah, as the proceedings brought by it have been stayed, there is also no reason why the costs orders should not be able to be enforced forthwith. However, in the event that the matter proceeds with a solicitor retained by Tanamerah, before any costs order has been enforced, an application to stay the enforcement of the costs orders against it may be brought if the parties are unable to reach agreement on that issue.

Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd

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