Case: Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (in liquidation) (No 2) (2006) ATPR |P42-104
Outcome: discussed
The respondents submit that neither s 72 of the Fair Trading Act nor s 87 of the Trade Practices Act permits such orders. I do not accept this submission. Unlike s 82 of the Trade Practices Act these sections specifically anticipate the situation where loss or damage is likely rather than specifically determined at the time the order is made. An example of the flexibility of sections in granting relief can be seen in Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (in liquidation) (No 2) (2006) ATPR |P42-104, where, pursuant to s 87 , Gyles J made orders having the effect of indemnifying a company from claims made by other persons; see [3]. The orders sought by the applicant have the advantage of avoiding further expense in what has undoubtedly already been a very expensive proceeding especially in relation to the amount in dispute between the parties. They allow for the applicant to be compensated only if he actually suffers a loss and, if he does not, for him to have no more than his fair share of the partnership profits. It seems to me that the orders do justice to the parties in a practical and cost-effective way. 14 The respondents object to proposed order 12, by which the applicant seeks to have the cross claim dismissed. They say that this order is inappropriate because the cross-claim, for all intents and purposes was successful. In fact, except in so far as it was premised on the agreement between the parties being a purchase of shares in the first respondent, there was never any real dispute between the parties as to what was being sought under the cross claim; see the earlier judgment at [165] [166]. The applicant has never disputed that the $50,000 that he was paid should be accounted for in the winding up of the partnership. The respondents did not succeed in their claim concerning an agreement to purchase shares. As this was the only issue in dispute in the cross claim it is appropriate that it be dismissed. The cross claim was not the subject of significant separate argument at the hearing and it should have no impact on the ultimate assessment of costs. 15 Relying on a letter of 31 July 2006, from his solicitor to the respondents' solicitor offering to settle the proceedings, the applicant seeks costs on a party/party basis until 31 July 2006 and thereafter on an indemnity basis. The letter, which was without prejudice except as to costs, offered to settle the matter "conditional upon mutual releases and the surrender of our client's interest in the business ... and the withdrawal of the caveat over the Narrabeen property" on payment by the respondents to the applicant of (a) the sum of $180,000 (without interest); and (b) the cost of the proceedings on a party/party basis to the date of the offer. The letter concluded with a reference to the applicant's intention to tender the letter on the question of costs "which we will seek on an indemnity basis from the date of this offer" and to the " Calderbank principles on which this offer is made".