Consolidated Byrnes Holdings Limited ACN 111 052 585 v Hardel Investments Pty Limited ACN 083 276 000 [2009] FCA 399

FEDERAL COURT OF AUSTRALIA

Consolidated Byrnes Holdings Limited ACN 111 052 585 v Hardel Investments Pty Limited ACN 083 276 000 [2009] FCA 399 PRACTICE AND PROCEDURE – costs – application for indemnity costs brought by defendants against plaintiffs and non-parties – originating action an application for winding up under Corporations Act 2001 (Cth) – application previously dismissed – circumstances necessary to award costs in absence of hearing – whether plaintiffs and non-parties acted reasonably in bringing proceedings – whether plaintiffs and non-parties acted reasonably in prosecution of the proceedings – whether plaintiffs and non-parties acted reasonably in events leading up to proceedings being dismissed – application brought for improper and collateral purposes – application was an abuse of process – plaintiffs' and non-parties' conduct entirely unreasonable – application for indemnity costs granted PRACTICE AND PROCEDURE – costs – application for costs against non-parties – where plaintiffs may not be capable of satisfying orders for costs – Court can make an order for costs against non-parties even though proceedings have been dismissed – whether operation of s 43 of Federal Court of Australia Act 1976 (Cth) was affected by s 1335(2) of Corporations Act 2001 (Cth) – s 1335(2) only operates to save earlier enactments which otherwise would be inconsistent with the provision introduced – intended to be an enabling provision – does not prevent Court from making an order for costs against non-parties in proceedings brought under the Corporations Act 2001 (Cth) – Court can utilise O 6 r 8(1)(b) to join a non-party even where s 1335(2) would prevent an order for costs against non-parties – application granted PRACTICE AND PROCEDURE – costs – application for costs against non-parties – where non-parties were legal practitioners – where proceedings had been dismissed – whether O 69 r 9(1)(d) empowers the Court to make an order for costs against legal practitioners if s 1335(2) operates to prevent an order being made against a non-party – statute must prevail where power under Federal Court Rules to award costs against legal practitioner is inconsistent with statute – legal practitioners joined as parties to proceedings so costs orders could be made – application granted Acts Interpretation Act 1958 (Vic) s 38 Companies Act 1936 (NSW)s 365(2) Corporations Act 2001 (Cth) s 58AA, s 459E, s 459F, s 459G, s 459P, s 465C, s 1335(2) Federal Court of Australia Act 1976 (Cth) s 43, s 59 Judicature Act 1890 (UK) s 5 Justices Act 1958 (Vic) s 74(1) Licensing Act 1958 (Vic) Supreme Court Act 1928 (Vic) Supreme Court Act 1986 (Vic)s 24(1) Federal Court (Corporations) Rules 2000 r 1.3, r 2.9, r 213 Federal Court Rules Applicant NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 125 FCR 488 referred to Australian Forest Managers Ltd (in liq) v Bramley (1996) 136 ALR 431 not followed Australian Securities Commission v Australian Home Investments Ltd (1993) 116 ALR 523 applied Baillieu Knight Frank v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 cited Bent v Gough (1992) 36 FCR 204 cited Bond Corporation Holdings Ltd (1990) 1 WAR 465 cited Boscaini v Corporation of Kensington and Norwood [1999] SASC 327not followed Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 applied Chief Commissioner of Stamp Duties v Paliflex Pty Ltd (1999) 149 FLR 179 cited Construction Enterprises Pty Ltd v Lafarge Plasterboard Pty Ltd [2002] NTSC 21 cited David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 referred to Garnett v Bradley (1878) 3 App Cas 944 cited Gore v Justice Corporation Pty Ltd (2002) 119 FCR 429 cited Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284applied Hardel Investments Pty Ltd (ACN 083 276 000) v Consolidated Byrnes Holdings Limited (ACN 111 052 585) [2009] FCA 400 referred to Knight v F.P. Special Assets Ltd (1992) 174 CLR 178 referred to L & D Audio Acoustics Pty Ltd v Pioneer Electronic Australia Pty Ltd (1982) 7 ACLR 180referred to Naomi Marble and Granite Pty Ltd v FAI General Insurance Company Ltd (No 2) (1999) 1 Qd R 518 applied Packer v Meagher (1984) 3 NSWLR 486 cited Radiancy (Sales) Pty Ltd v Bimat Pty Ltd (2007) 25 ACLC 1216 cited Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175 cited Re A Company (No 0012209 of 1991) [1992] 2 All ER 797 cited Re British Electric Street Tramways [1903] 1 Ch 725 cited Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Quin (1997) 186 CLR 622 cited Re Struthers (liq of Project Management, Architecture and Construction Interiors Pty Ltd) (No 3) (2005) 56 ACSR 238 applied Re Wridgemont Display Homes Pty Ltd (1992) 39 FCR 193 not followed Ritter v Godfrey [1920] 2 KB 47 cited TS Recoveries Pty Ltd v Sea-slip Marinas (Aust) Pty Ltd (2007) 25 ACLC 1371cited U.T.S.A. Pty Ltd (In liquidation) v Ultra Tune Australia Pty Ltd (1999) 1 VR 204 applied Vestris v Cashman (1998) 72 SASR 449 applied Williams v Spautz (1992) 174 CLR 509 cited CONSOLIDATED BYRNES HOLDINGS LIMITED ACN 111 052 585 and ALPHA ASSET GROUP PTY LIMITED ACN 108 722 541 v HARDEL INVESTMENTS PTY LIMITED ACN 083 276 000