KKL (Kangaroo Line) Pty Ltd (In Liquidation) v Beaufort Shipping Agency [2011] NSWSC 314

Supreme Court New South Wales

Medium Neutral Citation: KKL (Kangaroo Line) Pty Ltd (In Liquidation) v Beaufort Shipping Agency [2011] NSWSC 314 Hearing dates: 8 April 2011 Decision date: 18 April 2011 Jurisdiction: Common Law Before: Rothman J Decision: (i) Notice of motion and application of Mr Vangsnes is dismissed; (ii) Mr Vangsnes shall pay the costs of all other parties in the proceedings on an indemnity basis. Catchwords: PRACTICE AND PROCEDURE - motion to be added as a party to proceedings finalised in 1986 - motion to set aside creditor settlement approved in 1986 - applicant had no standing - matter has been dealt with on a number of occasions by other judicial officers - vexatious and abuse of process - motion dismissed - indemnity costs awarded Cases Cited: KKL (Kangaroo Line) Pty Ltd v Beaufort Shipping Agency & Anor [2008] NSWSC 663 Category: Interlocutory applications Parties: KKL (Kangaroo Line) Pty Ltd (In Liquidation) (Plaintiff) Beaufort Shipping Agency (First Defendant) Croxfort Limited (Second Defendant) Trygve Vangsnes (Applicant on the Motion) Representation: Solicitors: No appearance (Plaintiff) No appearance (First Defendant) No appearance (Second Defendant) Blake Dawson (Ernst & Young - representing the deceased Liquidator, Robert George Dunn) T Vangsnes (Applicant on the Motion) File Number(s): 1986/13267

Judgment 1Mr Trygve Vangsnes seeks to set aside a 1986 settlement between KKL (Kangaroo Line) Pty Ltd (hereinafter "KKL") and certain creditors. The settlement was approved by Justice Rogers in 1986. 2Justice Rogers had previously granted ex parte relief and the issues relating to liquidation and the rights of the creditors had been before the Court, comprised of Rogers J, on a number of occasions. There was a contested application for relief which was ultimately resolved by consent of the parties. Court transcripts are on the file. 3The transcript of 28 May 1986 reveals that Rogers J dealt with the application for the Court's approval to the Liquidator compromising the issues with the creditors. By operation of s 377(1) of the then Companies (NSW) Code, the Liquidator could, with the authority of the Court, make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging to have any claim against the company. The transcript of 28 May 1986 is annexed to the judgment of Smart AJ of 2 July 2008 ( KKL (Kangaroo Line) Pty Ltd v Beaufort Shipping Agency & Anor [2008] NSWSC 663). 4The approval of the compromise included a condition that no proceedings be taken against Mr Vangsnes for breach of duty. Other conditions applied. 5The full facts are set out in a judgment of Smart AJ, to which reference has already been made. 6Further applications have been made and dealt with by Bryson J, in the Equity division, Einstein J, McDougall J and McCallum J on 28 August 2009. Each of these proceedings dealt with notices of motion in or to the same effect, namely, to set aside the settlement approved by Rogers J in 1986. 7The current notice of motion takes the matter no further. For the reasons that each and every one of the previous judicial officers have refused the application, I, too, refuse the application. 8Mr Vangsnes is not a party to the proceedings. The proceedings are now almost 30 years old and the Liquidator has passed away. There have been innumerable applications before the Court to achieve a result which, on each occasion, has been unsuccessful. 9On each occasion, Mr Vangsnes has been ordered to pay costs. As I understand it from the material before the Court those costs are still outstanding. 10The Court endorses the decision of her Honour Justice McCallum on 28 August 2009 and is not satisfied that Mr Vangsnes has any standing to bring the present application or notice of motion. The Court does not consider it appropriate to join Mr Vangsnes as a party to the proceedings, assuming, for that purpose, that it has jurisdiction so to do. 11The notice of motion shall be struck out. 12On 8 April 2011, the Court gave very short reasons in or to the effect of the above, striking out the notice of motion and dismissing the proceedings. There are now a number of orders to that effect. There are now costs orders which remain unpaid. Mr Vangsnes cannot continue to impose upon other parties costs in relation to the same or a similar application. 13The claims for relief brought by Mr Vangsnes manifestly disclose no reasonable cause of action or basis for relief and, given the number of times with which this matter, or a similar matter, has been dealt, those claims are vexatious, unreasonable, and an abuse of the process of the Court. 14After announcing the orders of the Court on 8 April 2011 and giving very short reasons and reserving full reasons, application was made for indemnity costs. For all of the reasons set out in these brief reasons, and the reasons upon which the application was based. The Court will order costs on an indemnity basis. It is wholly unfair that a party that has dealt with the matter over a number of years, and who appears only out of courtesy to the Court, should continue to be out of pocket in relation to these applications. 15The Court makes the following orders: (i) Notice of motion and application of Mr Vangsnes is dismissed; (ii) Mr Vangsnes shall pay the costs of all other parties in the proceedings on an indemnity basis.