In the matter of Anne Lewis Pty Limited

[2013] NSWSC 1992

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Anne Lewis Pty Limited [2013] NSWSC 1992

Hearing dates:

28 November 2013

Decision date:

28 November 2013

Jurisdiction:

Equity Division - Corporations List

Before:

Brereton J

Decision:

Order that defendants pay plaintiff's costs of and incidental to relisting the matter before the Chief Judge on 26 August 2013, including the costs of that day and the costs of endeavouring to secure compliance with the order after 20 August 2013, and that otherwise there be no order as to costs to the intent that each party bear its own costs.

Order that the balance of the summons be otherwise dismissed.

Catchwords:

COSTS - order made for production of documents - where plaintiff substantially succeeded against the first defendant but failed against the second through eighth defendants - rather than complication of an order against the first defendant and then for the second through eighth defendants, practical justice is done by making no order as to the costs of the substantive proceedings - appropriate to order defendants to pay plaintiff's costs of and incidental to relisting of matter due to non-production of documents.

Legislation Cited:

(Cth) Corporations Act 2001 s 247A
(NSW) Uniform Civil Procedure Rules 2005 r 5.3

Cases Cited:

Harrison, Jones and Devlin Ltd v Union Bank of Australia [1910] HCA 44; (1910) 11 CLR 492
Johnson v Trotter [2006] NSWSC 67

Category:

Costs

Parties:

Peter Lewis (plaintiff)
Anne Lewis Pty Limited (and 8 others) (defendants)

Representation:

Counsel:
S Loughnan (plaintiff)
D Lloyd (defendants)
Solicitors:
Hennessey & Co (plaintiff)
Rickard Lawyers (defendants)

File Number(s):

2013/153602

Judgment - EX TEMPORE

1. HIS HONOUR: By originating process filed on 17 May 2013 and amended on 26 June 2013 the plaintiff Peter Lewis sought against the first defendant Anne Lewis Pty Ltd, the second defendant its director Mrs Pamela Lewis, the third, fourth, fifth, sixth, seventh and eighth defendants (being companies to which the plaintiff suspected that assets of the first defendant had been divested), and the ninth defendant Brian Edmund Byrd who together with the plaintiff were the executors of the estate of the late Geoffrey Lewis, an order pursuant to (Cth) Corporations Act 2001, s 247A, that the first defendant produce for inspection documents listed in schedule 1 to the originating process, and orders by way of preliminary discovery pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 5.3, against the second to eighth defendants.

1. The institution of proceedings followed the exchange of correspondence between the parties in which the plaintiff had sought access to the documents in question, and that access had not been forthcoming. Much attention has been given, on this and earlier occasions to a letter of 21 June 2013 in which the solicitors for the defendants wrote inter alia:

I refer to the Originating Process of Mr Peter Lewis as plaintiff in the Supreme Court and note that the application was not brought on behalf of the Executors of the Estate. I am aware that Mr Bird's office has been sent a copy.

Should the executors make a request for a reasonable range of documents for a purpose that is identified and legitimate, my client would of course consider that request.

Having regard to Mr Peter Lewis' application to the Supreme Court, I have advised my client it does not fall into any of those categories.

1. In my view, what that letter conveyed in substance was that while the defendants would consider an application made by "the executors" they would not consider one made by Mr Lewis on the footing that he did not represent the estate as he was only one of two executors. That view was misconceived, as was pointed out more than once to the defendants' solicitor with reference to the judgment of White J in Johnson v Trotter [2006] NSWSC 67 and the judgment of the High Court of Australia in Harrison, Jones and Devlin Ltd v Union Bank of Australia [1910] HCA 44; (1910) 11 CLR 492.

1. Ultimately, when the originating process came on for hearing, after the evidence had been read and the Chief Judge who presided had made various observations in the course of argument, the parties reached an interim agreement during a short adjournment. By consent and without admissions an order was made that the first defendant produce most but not all of the documents referred to in schedule 1 to the originating process. No order was made against the second to eighth defendants or in respect of the documents referred to in schedule 2. The ninth defendant had filed a submitting appearance.

1. A point was taken that the order made against the first defendant should be for production to the solicitor for the estate. It was indicated there and then that the solicitor for the plaintiff was acting for the estate. Of course, an estate has no independent legal personality and is legally represented by the executor or executors. In this case, Mr Hennessy was right to claim that he was acting for the estate, in the sense that he was acting for Mr Lewis in his capacity as executor.

1. It was submitted that in the course of the hearing, or at least in the written submissions that preceded it, the plaintiff disavowed any proposition that he was acting on behalf of the estate in favour of the position that he was acting in a purely personal capacity. I do not read the plaintiff's written submissions in that way. True it is that it was said that he was claiming a personal right. But it was a right that he had pursuant to s 247A as a registered shareholder in a company in which he held shares together with Mr Byrd in their capacities as executors of the estate. As a registered shareholder, he had the right to make the application.

1. It seems to me that much of the opposition to the application, and then much of the resistance to producing the documents after the consent order had been made, came from the misconceived insistence on the proposition that the plaintiff was not acting in an executorial capacity.

1. As I have said, however, the plaintiff by no means obtained all the relief sought, and obtained no relief against the second to eighth defendants and no longer seeks any such relief. In simple terms, it can be said that the plaintiff substantially succeeded against the first defendant, but failed against the second through eighth defendants. In those circumstances, one might normally make an order that the first defendant pay the plaintiff's costs of the proceedings against the first defendant, and that the plaintiff pay the costs of the second through eighth defendants. In this case, however, the third through eighth defendants had the same representation as the first defendant. The second defendant was separately represented, she being the director of the first defendant, but there seems to be no real justification for why the costs of separate representation for her should be borne by the plaintiff.

1. It seems to me that, taking an overall and global view of the matter, the plaintiff obtained some but not all of the relief he sought, and that rather than leading to the complication of costs orders against the first defendant and for the second through eighth defendants, practical justice is done by making no order as to the costs of the substantive proceedings. That also accords with what is often the practice of the court where parties reach a consensual disposition of proceedings but are unable to agree as to costs.

1. That then leaves the additional costs that were reserved by the Chief Judge on 26 August 2013 following the relisting of the matter that day due to the non-production of the documents in compliance with order 1. As I have said, it seems to me that this was a consequence of the misconceived disinclination to recognise the plaintiff's executorial capacity. In those circumstances, I see no reason why the defendants should not bear the costs of and incidental to the relisting of the matter that day, which was necessitated by their non-compliance with the earlier consent order.

1. Accordingly, my orders are:

(1)   Order that the defendants pay the plaintiff's costs of and incidental to the relisting of the matter before the Chief Judge on 26 August 2013, including the costs of that day and the costs of endeavouring to secure compliance with the order after 20 August 2013, and that otherwise there be no order as to costs to the intent that each party bear its own costs.

(2)   Order that the balance of the summons be otherwise dismissed.

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