Tara Communications Group Pty Ltd v Simons Ravden Pty Ltd

Judgment 1HER HONOUR: By amended notice of motion dated 4 June 2012 the defendants seek an order that the first plaintiff's statement of claim brought by the first plaintiff be struck out or dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005. The proceedings brought by Mr Ryan, the second plaintiff, were dismissed by consent on 12 August 2011. 2The defendants also seek an order for indemnity costs against Mr Pope, the solicitor for the first plaintiff, on the basis that at the time of filing his notice of appearance in September 2011 he was on notice that Mr Ryan was an undischarged bankrupt and for that reason, being the sole director and shareholder of the company, the proceedings were not validly instituted by the first plaintiff and that he should have refused to act in the proceedings without satisfying himself that he was otherwise properly instructed to act on the company's behalf. 3Mr Gunning of counsel initially announced his appearance for the first plaintiff company however, after issue was taken with his retainer, he confirmed that he was without instructions and that his appearance on the motion was limited to resisting the costs claim against Mr Pope. 4After considering the defendants' thorough and considered submissions in support of the orders under Rule 13.4, and in circumstances where there was no contradictor on the motion, I am satisfied that the statement of claim brought by the first plaintiff should be struck out. There is no evidence to suggest that Mr Ryan's trustee in bankruptcy, if he is the beneficial holder of the shares in the plaintiff company, had any interest in maintaining the proceedings on the company's behalf. 5I turn now to consider whether the defendants have made out their claim for indemnity costs against Mr Pope. 6The defendants relied upon the affidavit of Ian Mitchell dated 7 May 2012 in which he details a chronology of relevant dates. That chronology, supplemented by the evidence led on the motion, is as follows: 16 October 1992 The first plaintiff incorporated (original name was Tara City Mining). 17 December 1992 Mr Ryan entered into bankruptcy. (He has not since been discharged. In August 2011 Mr Pope appeared in proceedings before the Federal Magistrates Court to have the bankruptcy annulled. Those proceedings were dismissed with costs.) 30 May 2001 Mr Ryan: