mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hunt v Muollo [2003] 2 NZLR 322
Outcome: referred to
There are two other possible bases for orders in this case. The first is that, in the circumstances of this case, the Court is able to look behind the trust structure and determine that, in reality, the property of the trust is effectively Mr Donovan's property because he effectively controls the power of selection ( Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814 ; (2006) 153 FCR 509 at 518 [29] and 520-521 [36]-[39] per French J). The second possible basis is that Mr Donovan has, in the particular circumstances of this case, an expectancy under the Stephen Donovan Family Trust (see Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 at 607 per Lord Reid, at 615 per Lord Wilberforce; Hunt v Muollo [2003] 2 NZLR 322 at 325 [11]) and the case falls within Cardile ((i) in the passage quoted above at [15]) or O 25A r 5(5)(a). As these possibilities were not the subject of detailed submissions by counsel, I do no more than identify them as a possible basis for the freezing orders against the third parties.
Case: In re Coleman; Henry v Strong (1888) Ch D 443
Outcome: referred to
The respondents' submission that Mr Donovan, as a member of a class of possible objects of appointment, has no proprietary interest in the trust assets is correct: In re Coleman; Henry v Strong (1888) 39 Ch D 443 ; In re Weir's Settlement Trusts; Macpherson v Inland Revenue Commissioners [1971] Ch 145. However, I do not think that is fatal to the applicants' application. I say that for the following reason. I think the test formulated by the High Court in Cardile ((ii) in the passage quoted above at [15]) and reflected in O 25A r 5(5) is wide enough to cover the present circumstances. Both refer to a process which "is or may ultimately be available" and the fact that the third party " may be obliged to disgorge assets" or contribute towards satisfying the judgment or prospective judgment. It is possible that Mr Donovan will receive an interest under the Stephen Donovan Family Trust which is recoverable by a trustee in bankruptcy in the event that the applicants obtain a judgment against Mr Donovan and he is placed into bankruptcy upon being unable to satisfy that judgment. I am mindful of the fact that considerable caution must be exercised in making freezing orders against third parties, but at the same time there needs to be some flexibility in the test, as the circumstances of this case plainly show. Other courts have considered that the use of the word "may" is significant: Westpac Banking Corporation v Hilliard [2001] VSC 187 ; Audio Products Group Pty Ltd v Mamone [2005] NSWSC 982 ; Robmatjus Pty Ltd v Violet Home Loans Australia Pty Ltd [2007] VSC 165.
Case: In re Weir's Settlement Trusts; Macpherson v Inland Revenue Commissioners [1971] Ch 145
Outcome: referred to
The respondents' submission that Mr Donovan, as a member of a class of possible objects of appointment, has no proprietary interest in the trust assets is correct: In re Coleman; Henry v Strong (1888) 39 Ch D 443 ; In re Weir's Settlement Trusts; Macpherson v Inland Revenue Commissioners [1971] Ch 145. However, I do not think that is fatal to the applicants' application. I say that for the following reason. I think the test formulated by the High Court in Cardile ((ii) in the passage quoted above at [15]) and reflected in O 25A r 5(5) is wide enough to cover the present circumstances. Both refer to a process which "is or may ultimately be available" and the fact that the third party " may be obliged to disgorge assets" or contribute towards satisfying the judgment or prospective judgment. It is possible that Mr Donovan will receive an interest under the Stephen Donovan Family Trust which is recoverable by a trustee in bankruptcy in the event that the applicants obtain a judgment against Mr Donovan and he is placed into bankruptcy upon being unable to satisfy that judgment. I am mindful of the fact that considerable caution must be exercised in making freezing orders against third parties, but at the same time there needs to be some flexibility in the test, as the circumstances of this case plainly show. Other courts have considered that the use of the word "may" is significant: Westpac Banking Corporation v Hilliard [2001] VSC 187 ; Audio Products Group Pty Ltd v Mamone [2005] NSWSC 982 ; Robmatjus Pty Ltd v Violet Home Loans Australia Pty Ltd [2007] VSC 165.
Case: Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Outcome: referred to
The Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make Mareva orders or (as they are referred to in the Federal Court Rules ) freezing orders. A number of principles relating to the circumstances in which such orders may be made have been developed in the cases. For present purposes, it is sufficient to refer to Jackson v Sterling Industries Ltd (1987) 162 CLR 612 ; Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380 (" Cardile ").
Case: Robmatjus Pty Ltd v Violet Home Loans Australia Pty Ltd [2007] VSC 165
Outcome: referred to
The respondents' submission that Mr Donovan, as a member of a class of possible objects of appointment, has no proprietary interest in the trust assets is correct: In re Coleman; Henry v Strong (1888) 39 Ch D 443 ; In re Weir's Settlement Trusts; Macpherson v Inland Revenue Commissioners [1971] Ch 145. However, I do not think that is fatal to the applicants' application. I say that for the following reason. I think the test formulated by the High Court in Cardile ((ii) in the passage quoted above at [15]) and reflected in O 25A r 5(5) is wide enough to cover the present circumstances. Both refer to a process which "is or may ultimately be available" and the fact that the third party " may be obliged to disgorge assets" or contribute towards satisfying the judgment or prospective judgment. It is possible that Mr Donovan will receive an interest under the Stephen Donovan Family Trust which is recoverable by a trustee in bankruptcy in the event that the applicants obtain a judgment against Mr Donovan and he is placed into bankruptcy upon being unable to satisfy that judgment. I am mindful of the fact that considerable caution must be exercised in making freezing orders against third parties, but at the same time there needs to be some flexibility in the test, as the circumstances of this case plainly show. Other courts have considered that the use of the word "may" is significant: Westpac Banking Corporation v Hilliard [2001] VSC 187 ; Audio Products Group Pty Ltd v Mamone [2005] NSWSC 982 ; Robmatjus Pty Ltd v Violet Home Loans Australia Pty Ltd [2007] VSC 165.
Case: Westpac Banking Corporation v Hilliard [2001] VSC 187
Outcome: referred to
The respondents' submission that Mr Donovan, as a member of a class of possible objects of appointment, has no proprietary interest in the trust assets is correct: In re Coleman; Henry v Strong (1888) 39 Ch D 443 ; In re Weir's Settlement Trusts; Macpherson v Inland Revenue Commissioners [1971] Ch 145. However, I do not think that is fatal to the applicants' application. I say that for the following reason. I think the test formulated by the High Court in Cardile ((ii) in the passage quoted above at [15]) and reflected in O 25A r 5(5) is wide enough to cover the present circumstances. Both refer to a process which "is or may ultimately be available" and the fact that the third party " may be obliged to disgorge assets" or contribute towards satisfying the judgment or prospective judgment. It is possible that Mr Donovan will receive an interest under the Stephen Donovan Family Trust which is recoverable by a trustee in bankruptcy in the event that the applicants obtain a judgment against Mr Donovan and he is placed into bankruptcy upon being unable to satisfy that judgment. I am mindful of the fact that considerable caution must be exercised in making freezing orders against third parties, but at the same time there needs to be some flexibility in the test, as the circumstances of this case plainly show. Other courts have considered that the use of the word "may" is significant: Westpac Banking Corporation v Hilliard [2001] VSC 187 ; Audio Products Group Pty Ltd v Mamone [2005] NSWSC 982 ; Robmatjus Pty Ltd v Violet Home Loans Australia Pty Ltd [2007] VSC 165.
Case: Australian &amp; New Zealand Banking Group Ltd v Actus Australia Pty Ltd [2000] WASC 244
Outcome: cited
There is, however, the possibility of disconformity between the Registrar's order and O 27 r 4A. Costs assessed on a "solicitor and client" basis may be different from the costs recoverable under the rule which provides that the subpoenaed person is to be paid his "expense or loss reasonably incurred". The kinds of expenses that are regarded as reasonable for the purposes of the rule can be seen from cases such as: Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284; Deposit and Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell and Co (unreported, Supreme Court New South Wales, Bainton J, 8 March 1996); Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] 1 VR 464; Australia &amp; New Zealand Banking Group Ltd v Actus Australia Pty Ltd [2000] WASC 244 ; Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 881 ; J Aron Corp v Newmont Yandal Operations Pty Ltd [2004] NSWSC 996. These cases establish that if particular costs are reasonably incurred and the quantum is reasonable the costs are recoverable. Whether or not there is an inconsistency between the order and the rule depends upon what is comprehended by a "solicitor and client" costs order.
Case: Bouras v Grandelis [2005] NSWCA 463
Outcome: applied
A "solicitor and client" costs order is to be distinguished from an order for taxation on a solicitor and own client basis. On such a taxation all costs are to be allowed, except if they are unreasonably incurred or unreasonable in amount: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59, 64. On one view the onus lies on the paying party to show unreasonableness: Kumagai Australia Finance v Avarton Ltd (unreported, Supreme Court of New South Wales, Bryson J, 7 June 1991). Another view is that it is just "a question of who gets the benefit of any doubt in the mind of the taxing master": EMI Records at 71. See also Bouras v Grandelis [2005] NSWCA 463.
Case: Danieletto v Khera (1995) 35 NSWLR 684
Outcome: cited
The views of Sheppard J have not withstood the test of time. The most powerful attack came in Danieletto v Khera (1995) 35 NSWLR 684. In that case Bryson J rejected the idea that the entitlement of witnesses to be reimbursed for their costs and expenses could be established by reference to conflicting decisions from long ago affected by a Tudor statute long since repealed. He said (35 NSWLR at 688) that the matter should be approached as one of principle and, according to principle it "is a necessary incident of the exercise by the court of its subpoena power that the court should deal with the question of paying persons whose time and attention are involved in the exercise". That is, the court has an inherent jurisdiction to award in favour of a witness such costs as it thinks appropriate to compensate the witness for his time and expenses incurred in compliance with a subpoena. Thus it has been said, correctly in my opinion, that the rules that fix costs for witnesses "represent[s] but an aspect of the more comprehensive jurisdiction in respect of persons subjected to compulsion by the processes of the Court in proceedings to which they are not parties": Re Pan Pharmaceuticals Ltd; Selim v McGrath (2004) 48 ACSR 681, 690 per Barrett J.
Case: Deposit and Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell (unreported, Supreme Court New South Wales, Bainton J, 8 March 1996)
Outcome: cited
There is, however, the possibility of disconformity between the Registrar's order and O 27 r 4A. Costs assessed on a "solicitor and client" basis may be different from the costs recoverable under the rule which provides that the subpoenaed person is to be paid his "expense or loss reasonably incurred". The kinds of expenses that are regarded as reasonable for the purposes of the rule can be seen from cases such as: Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284; Deposit and Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell and Co (unreported, Supreme Court New South Wales, Bainton J, 8 March 1996); Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] 1 VR 464; Australia &amp; New Zealand Banking Group Ltd v Actus Australia Pty Ltd [2000] WASC 244 ; Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 881 ; J Aron Corp v Newmont Yandal Operations Pty Ltd [2004] NSWSC 996. These cases establish that if particular costs are reasonably incurred and the quantum is reasonable the costs are recoverable. Whether or not there is an inconsistency between the order and the rule depends upon what is comprehended by a "solicitor and client" costs order.
Case: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59
Outcome: applied
A "solicitor and client" costs order is to be distinguished from an order for taxation on a solicitor and own client basis. On such a taxation all costs are to be allowed, except if they are unreasonably incurred or unreasonable in amount: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59, 64. On one view the onus lies on the paying party to show unreasonableness: Kumagai Australia Finance v Avarton Ltd (unreported, Supreme Court of New South Wales, Bryson J, 7 June 1991). Another view is that it is just "a question of who gets the benefit of any doubt in the mind of the taxing master": EMI Records at 71. See also Bouras v Grandelis [2005] NSWCA 463.
Case: Fat-Sel Pty Ltd v Brambles Holdings Ltd (1985) 61 ALR 536
Outcome: cited
In this case the Registrar's order is that Boral pay Nielsens' costs and expenses of complying with the two subpoenae as taxed "on a solicitor/client basis". The Registrar's questions assume, I think, that there may be some disconformity between this order and the rules. If there is any disconformity (a matter to which I will return) it is certainly not between the Registrar's order and O 62 r 12(3). That order is concerned only with the expense (formerly "costs and charges") of attending court. That is the only kind of expense that is covered by schedule 2, where the relevant items applying to witnesses are Items 44 to 47 (inclusive). Each item only comes into play if a witness in fact attends court. So much is evident from the description of the item. In this case, of course, Nielsens was not called upon to answer the subpoena with the result that its proper officer did not attend at court. Hence O 62 r 12(3) is irrelevant to the taxation of Nielsens' costs. Nevertheless it is worth noting that if any item of costs falls within any of the four items in schedule 2 relevant to attendances, the taxing officer is required to apply that item ( Fat-Sel Pty Ltd v Brambles Holdings Ltd (1985) 61 ALR 536) unless there is an order of the court to a different effect.
Case: Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 881
Outcome: cited
There is, however, the possibility of disconformity between the Registrar's order and O 27 r 4A. Costs assessed on a "solicitor and client" basis may be different from the costs recoverable under the rule which provides that the subpoenaed person is to be paid his "expense or loss reasonably incurred". The kinds of expenses that are regarded as reasonable for the purposes of the rule can be seen from cases such as: Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284; Deposit and Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell and Co (unreported, Supreme Court New South Wales, Bainton J, 8 March 1996); Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] 1 VR 464; Australia &amp; New Zealand Banking Group Ltd v Actus Australia Pty Ltd [2000] WASC 244 ; Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 881 ; J Aron Corp v Newmont Yandal Operations Pty Ltd [2004] NSWSC 996. These cases establish that if particular costs are reasonably incurred and the quantum is reasonable the costs are recoverable. Whether or not there is an inconsistency between the order and the rule depends upon what is comprehended by a "solicitor and client" costs order.
Case: Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284
Outcome: cited
There is, however, the possibility of disconformity between the Registrar's order and O 27 r 4A. Costs assessed on a "solicitor and client" basis may be different from the costs recoverable under the rule which provides that the subpoenaed person is to be paid his "expense or loss reasonably incurred". The kinds of expenses that are regarded as reasonable for the purposes of the rule can be seen from cases such as: Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284; Deposit and Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell and Co (unreported, Supreme Court New South Wales, Bainton J, 8 March 1996); Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] 1 VR 464; Australia &amp; New Zealand Banking Group Ltd v Actus Australia Pty Ltd [2000] WASC 244 ; Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 881 ; J Aron Corp v Newmont Yandal Operations Pty Ltd [2004] NSWSC 996. These cases establish that if particular costs are reasonably incurred and the quantum is reasonable the costs are recoverable. Whether or not there is an inconsistency between the order and the rule depends upon what is comprehended by a "solicitor and client" costs order.
Case: Gibbs v Gibbs [1952] P 332
Outcome: cited
Costs are sometimes ordered on an indemnity basis. There is some support for the view that this is equivalent to a solicitor and own client taxation: see eg Giles v Randall [1915] 1 KB 295, 298; Reed v Gray [1952] Ch 337; Gibbs v Gibbs [1952] P 332, 347. On the other hand there are cases, some of which are my own, where an indemnity cost order was made for the purpose of ensuring that the beneficiary of the order was not out of pocket by one cent. An example is when a party is joined so that there is a contradictor.
Case: Giles v Randall [1915] 1 KB 290
Outcome: cited
More usually an order for costs to be taxed on a solicitor/client basis is understood to mean that the person should recover that which he ought properly pay to his solicitor: Goodwin v Storrar [1947] 1 KB 457, 458. The purpose of the order is to allow "as many of the charges which [the party] would have been compelled to pay to his own solicitor for costs of the action as fair justice to the other party will permit": Smith v Smith [1906] VLR 78, 80, citing from Daniels Chancery Practice. Oliver, Law of Costs (1960) p 1 states this is substantially "a party and party taxation on a more generous scale". See also Giles v Randall [1915] 1 KB 290, 295. In practice costs taxed on this basis will be much the same as those taxed under O 27 r 4A. 14 Costs are sometimes ordered on an indemnity basis. There is some support for the view that this is equivalent to a solicitor and own client taxation: see eg Giles v Randall [1915] 1 KB 295, 298; Reed v Gray [1952] Ch 337; Gibbs v Gibbs [1952] P 332, 347. On the other hand there are cases, some of which are my own, where an indemnity cost order was made for the purpose of ensuring that the beneficiary of the order was not out of pocket by one cent. An example is when a party is joined so that there is a contradictor.
Case: Goodwin v Storrar [1947] 1 KB 457
Outcome: applied
More usually an order for costs to be taxed on a solicitor/client basis is understood to mean that the person should recover that which he ought properly pay to his solicitor: Goodwin v Storrar [1947] 1 KB 457, 458. The purpose of the order is to allow "as many of the charges which [the party] would have been compelled to pay to his own solicitor for costs of the action as fair justice to the other party will permit": Smith v Smith [1906] VLR 78, 80, citing from Daniels Chancery Practice. Oliver, Law of Costs (1960) p 1 states this is substantially "a party and party taxation on a more generous scale". See also Giles v Randall [1915] 1 KB 290, 295. In practice costs taxed on this basis will be much the same as those taxed under O 27 r 4A.
Case: J Aron Corp v Newmont Yandal Operations Pty Ltd [2004] NSWSC 996
Outcome: cited
There is, however, the possibility of disconformity between the Registrar's order and O 27 r 4A. Costs assessed on a "solicitor and client" basis may be different from the costs recoverable under the rule which provides that the subpoenaed person is to be paid his "expense or loss reasonably incurred". The kinds of expenses that are regarded as reasonable for the purposes of the rule can be seen from cases such as: Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284; Deposit and Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell and Co (unreported, Supreme Court New South Wales, Bainton J, 8 March 1996); Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] 1 VR 464; Australia &amp; New Zealand Banking Group Ltd v Actus Australia Pty Ltd [2000] WASC 244 ; Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 881 ; J Aron Corp v Newmont Yandal Operations Pty Ltd [2004] NSWSC 996. These cases establish that if particular costs are reasonably incurred and the quantum is reasonable the costs are recoverable. Whether or not there is an inconsistency between the order and the rule depends upon what is comprehended by a "solicitor and client" costs order.
Case: King v GIO Australia Holdings Ltd (2001) FCA 1773
Outcome: cited
In any event, since the decision of the High Court in Knight v F P Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 where it was held that the power to award costs permits a court to award costs against a non-party, the view has been taken that s 43 of the Federal Court of Australia Act 1976 (Cth) confers a power to award costs in favour of a non-party. Thus, in O'Keefe Nominees Pty Ltd v BP Australia (1994) 55 FCR 591 Spender J considered that s 43 authorised him to make a costs order in favour of an intervenor and in King v GIO Australia Holdings Ltd (2001) FCA 1773 Moore J said that s 43 enabled him to make a costs order in favour of a person served with a subpoena.
Case: Knight v F P Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178
Outcome: cited
In any event, since the decision of the High Court in Knight v F P Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 where it was held that the power to award costs permits a court to award costs against a non-party, the view has been taken that s 43 of the Federal Court of Australia Act 1976 (Cth) confers a power to award costs in favour of a non-party. Thus, in O'Keefe Nominees Pty Ltd v BP Australia (1994) 55 FCR 591 Spender J considered that s 43 authorised him to make a costs order in favour of an intervenor and in King v GIO Australia Holdings Ltd (2001) FCA 1773 Moore J said that s 43 enabled him to make a costs order in favour of a person served with a subpoena.
Case: Kumagai Australia Finance v Avarton Ltd (unreported, Supreme Court of New South Wales, Bryson J, 7 June 1991)
Outcome: cited
A "solicitor and client" costs order is to be distinguished from an order for taxation on a solicitor and own client basis. On such a taxation all costs are to be allowed, except if they are unreasonably incurred or unreasonable in amount: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59, 64. On one view the onus lies on the paying party to show unreasonableness: Kumagai Australia Finance v Avarton Ltd (unreported, Supreme Court of New South Wales, Bryson J, 7 June 1991). Another view is that it is just "a question of who gets the benefit of any doubt in the mind of the taxing master": EMI Records at 71. See also Bouras v Grandelis [2005] NSWCA 463.