FEDERAL COURT OF AUSTRALIA Gandel Metals Pty Ltd, in the matter of Centennial Mining Limited (Subject to Deed of Company Arrangement) v Centennial Mining Limited (No 3) [2020] FCA 794 File number: VID 688 of 2019 Judge: MIDDLETON J Date of judgment: 5 June 2020 Catchwords: PRACTICE AND PROCEDURE – costs – costs follow the event – relief to be confined to that claimed in originating application Date of hearing: 12 March 2020 Date of last submissions: 3 June 2020 Registry: Melbourne Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 13 Counsel for the Plaintiff: Mr S Maiden QC with Mr A Ounapuu Solicitor for the Plaintiff: HWL Ebsworth Counsel for the Defendants: Mr P D Crutchfield QC with Mr P R Edgar Solicitor for the Defendants: Lavan Counsel for the Interested Party: Mr H Austin QC and Mr C R Brown Solicitor for the Interested Party: CCK Lawyers ORDERS VID 688 of 2019 IN THE MATTER OF CENTENNIAL MINING LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 149 308 921) BETWEEN: GANDEL METALS PTY LTD (ACN 102 347 955) Plaintiff AND: CENTENNIAL MINING LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 149 308 921) First Defendant MALDON RESOURCES PTY LTD (ACN 090 458 665) Second Defendant RICHARD SCOTT TUCKER Third Defendant V C OLDFIELD INVESTMENTS PTY LIMITED ACN 149 465 805 AS TRUSTEE FOR THE OLDFIELD FAMILY TRUST NO. 3 Interested Party JUDGE: MIDDLETON J DATE OF ORDER: 5 June 2020 IT BE DECLARED THAT: 1. The Plaintiff is subrogated on a pro-rata basis to all rights of Squadron Resources Pty Ltd (Squadron) under the mining mortgage granted to Squadron by the First Defendant and formerly registered on the Victorian Mining Register Tenement Number MIN5294 as Instrument F90010146. THE COURT ORDERS THAT: 2. The First to Fifth Defendants pay the Plaintiff's costs, including reserved costs, of the proceedings up to 11 February 2020 on a standard basis to be taxed in default of agreement. 3. Subject to Order 13 of the orders made 20 February 2020 by Moshinsky J, the First to Fifth Defendants and the Interested Party pay the Plaintiff's costs, including reserved costs, of the proceedings on a joint and several basis from 11 February 2020 to judgment on a standard basis to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MIDDLETON J: 1 On 15 May 2020 I published my reasons in the above proceedings, and ordered that the parties confer and within seven days provide to the Court an agreed minute of order (including as to costs or any other directions), or if no agreement, a short submission by each party as to the appropriate minute of order. 2 The Plaintiff ('Gandel') proposed orders that: IT BE DECLARED THAT: 1. From 10 August 2018, Gandel Metals Pty Ltd (ACN 102 347 955) (Gandel) is subrogated to all rights of Squadron Resources Pty Ltd (Squadron) under the mining mortgage granted to Squadron by Centennial Mining Limited (ACN 149 308 921) (Centennial) and formerly registered on the Victorian Mining Register Tenement Number MIN5294 as Instrument F90010146, to secure repayment of the advance of $2,171,271.64 made by Gandel to Centennial together with interest on that amount calculated at 12.5% per annum from the date of advance. THE COURT ORDERS THAT: 2. The first to fifth defendants pay the plaintiff's costs, including reserved costs, of the proceedings up to 11 February 2020 on a standard basis to be taxed in default of agreement. 3. The first to fifth defendants and the interested party pay the plaintiff's costs, including reserved costs, of the proceedings on a joint and several basis from 11 February 2020 to judgment on a standard basis to be taxed in default of agreement. 3 The First to Fifth Defendants proposed orders that: IT BE DECLARED THAT: 1. [From 10 August 2018], Gandel Metals Pty Ltd (ACN 102 347 955) (Gandel) is subrogated on a pro-rata basis to all rights of Squadron Resources Pty Ltd (Squadron) under the mining mortgage granted to Squadron by Centennial Mining Limited (ACN 149 308 921) (Centennial) and formerly registered on the Victorian Mining Register Tenement Number MIN5294 as Instrument F90010146. THE COURT ORDERS THAT: 2. The first and second defendants pay the plaintiff's costs, including reserved costs, of the proceedings up to 11 February 2020 on a standard basis to be taxed in default of agreement. 3. Subject to order 13 of the orders made 20 February 2020, the first and second defendants and the interested party pay the plaintiff's costs, including reserved costs, of the proceedings on a joint and several basis from 11 February 2020 to judgment on a standard basis to be taxed in default of agreement. 4 V C Oldfield Investments Pty Ltd ('V C Oldfield') proposed orders that: IT BE DECLARED THAT: 1. Gandel Metals Pty Ltd (ACN 102 347 955) (Gandel) is subrogated on a pro-rata basis to all rights of Squadron Resources Pty Ltd (Squadron) under the mining mortgage granted to Squadron by Centennial Mining Limited (ACN 149 308 921) (Centennial) and formerly registered on the Victorian Mining Register Tenement Number MIN5294 as Instrument F90010146, to secue repayment of the advance of $2,171,271.64 made by Gandel to Centennial. THE COURT ORDERS THAT: 2. The first to fifth defendants pay the plaintiff's costs, including reserved costs, of the proceedings up to 11 February 2020 on a standard basis to be taxed in default of agreement. 3. Subject to order 13 made on 20 February 2020 by Justice Moshinsky, the first to fifth defendants and the interested party pay the plaintiff's costs, including reserved costs, of the proceedings on a joint and several basis from 11 February 2020 to judgment on a standard basis to be taxed in default of agreement. 5 Matters in dispute between the parties are whether: (1) the orders should include a date; (2) the orders should determine the quantum owed to Gandel and applicable interest rate; (3) the orders should include a pro-rata reference; and (4) costs. 6 As to the date 'from 10 August 2018' sought by Gandel, this was not part of the declaration sought in the proceedings, and I do not propose to depart from the relief sought in the originating application where this is opposed. 7 As to the pro-rata subrogation, consistent with my reasons, Gandel is to be subrogated to the amount advanced by Gandel (ie $2,171,271.64) on 10 August 2018 to Squadron Resources Pty Ltd. Nevertheless, I do not propose to make the declaration other than substantially in the terms sought in the originating application but with the inclusion of the reference to "on a pro-rata basis", particularly as there is the dispute relating to interest which could impact upon the amount to be included in the declaration. 8 As to interest, I do not propose to include an interest component as this was not the subject of argument nor the subject of specific relief sought in the originating application. If there is an ongoing dispute as to interest, then this can be dealt with separately and after hearing further evidence on this issue and submissions. 9 As to costs, I consider that the Deed Administrators should be held liable (along with the First and Second Defendants) to pay the costs, and the costs orders relating to the period from 11 February 2020 should be made subject to Order 13 made by Moshinsky J on 20 February 2020. 10 I do not accept that the reasons advanced by the Deed Administrators justify their being excused from liability for any costs order made in favour of the Plaintiff, the successful party. I understand that they were a necessary party and joined on this basis, but they participated in the hearing and put submissions contrary to the interests of the Plaintiff. 11 I will declare that Gandel is subrogated on a pro-rata basis to all rights of Squadron under the mining mortgage granted to Squadron by Centennial and formerly registered on the Victorian Mining Register Tenement Number MIN5294 as Instrument F90010146. 12 I will order that: (1) The First to Fifth Defendants pay Gandel's costs, including reserved costs, of the proceedings up to 11 February 2020 on a standard basis to be taxed in default of agreement. (2) Subject to Order 13 of the orders made on 20 February 2020 by Moshinsky J, the First to Fifth Defendants and V C Oldfield pay Gandel's costs, including reserved costs, of the proceedings on a joint and several basis from 11 February 2020 to judgment on a standard basis to be taxed in default of agreement. 13 I should indicate that whilst it would be desirable to deal with all the issues that may still exist between the parties (such as to interest), it is not appropriate to go beyond the ambit of the dispute that was argued before the Court. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 5 June 2020