FEDERAL COURT OF AUSTRALIA McNamara v San (No. 4) [2010] FCA 959 Citation: McNamara v San (No. 4) [2010] FCA 959 Parties: PAUL ANTHONY McNAMARA v BAO SAN, JULIE SAN, IVAN SAN, OFFICIAL TRUSTEE IN BANKRUPTCY and SCHON GREGORY CONDON File number: NSD 615 of 2009 Judge: GRAHAM J Date of judgment: 23 August 2010 Date of hearing: 23 August 2010 Date of last submissions: 23 August 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 15 The Applicant appeared in person. Counsel for the Third Respondent: E W Young Solicitor for the Third Respondent: Parry Carroll Counsel for Mr Kalde and Mr Kalyk: W S Reynolds IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 615 of 2009 BETWEEN: PAUL ANTHONY McNAMARA Applicant AND: BAO SAN First Respondent JULIE SAN Second Respondent IVAN SAN Third Respondent OFFICIAL TRUSTEE IN BANKRUPTCY Fourth Respondent SCHON GREGORY CONDON Fifth Respondent JUDGE: GRAHAM J DATE OF ORDER: 23 AUGUST 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The third respondent's Notice of Motion filed 18 August 2010 be dismissed on his own application, such dismissal to be without prejudice to any right of the third respondent to bring fresh proceedings, in relation to the agreement alleged, against the applicant and Mr Frank Kalyk and Mr Robert Kalde. 2. The third respondent pay the costs of Mr Kalyk and Mr Kalde of the Notice of Motion filed 18 August 2010. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 615 of 2009 BETWEEN: PAUL ANTHONY McNAMARA Applicant AND: BAO SAN First Respondent JULIE SAN Second Respondent IVAN SAN Third Respondent OFFICIAL TRUSTEE IN BANKRUPTCY Fourth Respondent SCHON GREGORY CONDON Fifth Respondent JUDGE: GRAHAM J DATE: 23 AUGUST 2010 PLACE: SYDNEY REASONS FOR JUDGMENT 1 There are two motions before the Court. The first is a motion that was filed on 24 March 2010, and the second is a motion that was filed on 18 August 2010. The motion presently under consideration is the motion filed 18 August 2010. 2 On 15 March 2010, the Court delivered its reasons for judgment in the proceedings in which Paul Anthony McNamara was the applicant, Bao San and Julie San were the first and second respondents, Ivan San, their son, was the third respondent, and the fifth and fourth respondents were, respectively, the trustees of the bankrupt estates of the first and second respondents. The proceedings related to the transfer of a property by the first and second respondents to the third respondent. 3 The applicant was represented throughout by Mr Kalyk of counsel, instructed by Mr Kalde of Knight Lawyers and, formerly, of K Q Lawyers. The third respondent was represented by Mr Young of counsel on the instructions of Parry Carroll, solicitors. The fourth respondent was represented by Mr Freidman, solicitor, of Harris Freidman Hyde Page, and the fifth respondent was represented by Mr Hayter, solicitor of Gillis Delaney, although for a brief period of time, on 8 February 2010, the fifth respondent was represented by Mr R. D. Marshall of counsel. 4 The Court's judgment has now been reported (see McNamara v San (No 3) (2010) 183 FCR 328). The orders of the Court made on 15 March 2010 were: '1. The amended Further Amended Application filed 12 February 2010 be dismissed. 2. The applicant pay the costs of the third respondent, the fourth respondent and the fifth respondent. 3. The costs of the fourth respondent and of the fifth respondent be taxed on an indemnity basis as from 25 September 2009. 4. The Orders as to costs in paragraphs 2 and 3 may not be entered before 29 March 2010 or such later date, if any, as the Court may on or before 29 March 2010 order.' 5 The Court's orders proceeded 'AND in the event that any party wishes to apply for a different order or orders as to costs 5. THE COURT GRANTS LEAVE to any party to file and serve a Notice of Motion returnable for 9:30am on 29 March 2010 or such earlier date as the parties may agree AND 6. THE COURT DIRECTS that any such Notice of Motion, together with Written Submissions in support of the orders proposed therein, be served on the other parties not less than two clear business days before the return date shown in the Notice of Motion.' 6 The third respondent was not satisfied with the order, in his favour, which had been proposed and filed the 24 March 2010 Notice of Motion seeking an order that his costs be taxed on an indemnity basis, and that an order be made that Frank Kalyk, barrister, and Robert Kalde, solicitor, of Knight Lawyers, in their capacity as counsel and solicitor for Paul Anthony McNamara, the applicant in the proceedings, pay the costs or some portion of the costs of the third respondent and that such costs be taxed on an indemnity basis under Order 62, rule 9 of the Federal Court Rules or s 43(3)(f) of the Federal Court of Australia Act 1976 (Cth). 7 When the motion came before the Court on 29 March 2010, final orders were made in respect of the costs of the fourth and fifth respondents who were excused from further appearance on the hearing of the third respondent's Notice of Motion, filed 24 March 2010. The order for costs in the third respondent's favour, as proposed on 15 March 2010, was set aside on the basis that an appropriate order as to costs would be made following the hearing of the third respondent's Notice of Motion, filed 24 March 2010, which was then fixed for hearing at 10.15 am on 23 August 2010. 8 On 18 August 2010, the third respondent filed the motion presently under consideration, which sought an order that the hearing listed for today of the motion filed 24 March 2010 be vacated, declaratory relief in respect of an alleged agreement between the third respondent, Mr Kalyk and Mr Kalde, and orders for the payment of moneys by Mr Kalyk to the third respondent, together with an order for the payment of the third respondent's costs by the applicant, Mr McNamara. In addition, an order was sought for the dismissal of the motion filed 24 March 2010 with no order as to costs and an order was sought that Mr Kalde and Mr Kalyk pay the costs of the third respondent of and incidental to the Notice of Motion, filed 18 August 2010, on an indemnity basis. 9 It will be apparent that the third respondent wishes to use the Notice of Motion filed 18 August 2010 as a vehicle for obtaining relief in the nature of specific performance in relation to an agreement said to have been reached between the third respondent, Mr Kalde and Mr Kalyk. It seems to me entirely inappropriate to allow the present proceedings in which Mr Kalyk and Mr Kalde were not parties to become proceedings for such relief. 10 After taking instructions, counsel for the third respondent informed the Court that the third respondent wished to withdraw the Notice of Motion filed 18 August 2010. However, he does not wish to have any decision of the Court on that motion become determinative of the claims for specific performance of the alleged agreement between the third respondent and Mr Kalyk and Mr Kalde. 11 It seems to me that the result which the third respondent wishes to achieve can be achieved under Order 35 rule 6 of the Federal Court Rules. 12 The question remains as to what order, if any, should be made as to costs in respect of the motion filed 18 August 2010. Counsel for the third respondent submits, as I would understand it, that there should be no order as to costs, as the issues raised in the 18 August 2010 motion have not been, and will not be, dealt with on the merits under the order for dismissal which has now been proposed. Mr McNamara, the applicant in the proceedings, sought no order as to costs in respect of the motion. Counsel now appearing for Mr Kalyk and Mr Kalde sought an order that the third respondent, Mr Ivan San, pay the costs of Mr Kalde and Mr Kalyk as respondents to the Notice of Motion. 13 My attention has been directed to certain documents passing between the parties which are annexures to the affidavit of Christine Louise Perry sworn 18 August 2010, which was read in support of the Notice of Motion prior to its withdrawal by the third respondent as the applicant named in it. 14 Without reaching any conclusions in relation to the legal effect of the documents to which my attention has been drawn, it seems to me that there is considerable room for argument as to whether or not any agreement was reached, and as to whether the agreement, if there was one, related to the question of what costs order should be made in respect of the third respondent's costs in the substantive proceedings which were the subject of the Court's judgment of 15 March 2010. 15 It seems to me that the third respondent should be ordered to pay the costs of Mr Kalyk and Mr Kalde of the motion filed 18 August 2010 in the circumstances which I have described above. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 1 September 2010