William Timothy Cape v Robert George Maidment, Redarb Pty Limited (Receiver and Manager Appointed), Kerry John Breeze, Lawrence Victor Quigg and Serendipity Pty Limited [1995] ACTSC 7 (16 February 1995)

SUPREME COURT OF THE ACT

WILLIAM TIMOTHY CAPE v. ROBERT GEORGE MAIDMENT, REDARB PTY LIMITED (Receiver
and Manager Appointed), KERRY JOHN BREEZE, LAWRENCE VICTOR QUIGG and
SERENDIPITY PTY LIMITED
No. SC333 of 1989
Number of pages - 2
Practice And Procedure - Costs

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Practice And Procedure - rate of remuneration for receiver's assistant in the event of liquidation - objections to various items in account - vexatious and/or frivolous objections - indemnity costs.

Costs - success on one issue - others vexatious or frivolous and unsuccessful - indemnity costs ordered.

HEARING

CANBERRA, 30 November 1994
16:2:1995

Counsel for the Plaintiff: Mr M J Neil QC with

Mr T Johnstone

Instructing solicitors: Crossin Barker Gosling

Counsel for the Second Defendant: Mr P Biscoe QC with
Mr W B Loftus

Instructing solicitors: Gallens Crowley and Chamberlain

Counsel for the Fifth Defendant: Mr B W Collins QC with
Mr C P Comans

Instructing solicitors: Sly and Weigall

ORDER

THE COURT ORDERS THAT:
1. The plaintiff pay the second and fifth defendants' costs in relation to the ruling of 21 May 1993 on an indemnity basis insofar as the same relates to rulings on issues other than the rate of remuneration for the receiver's assistant, Mr Warwick Davis.

2. There be no order as to the costs of litigating the question as to the rate of remuneration of Mr Davis.

DECISION

HIGGINS J On 30 November 1994, I delivered a judgment containing various rulings as to costs. That followed a submission by the parties that, in respect of certain matters, costs had been reserved but no ruling made.

2. It is now suggested that there was one matter omitted from that list of items upon which a ruling was sought.

3. That matter arises from a reference made by the Registrar on 28 September 1992 upon which I made a substantive ruling on 21 May 1993.

4. The text of the ruling which I gave on 21 May 1993 sets out the history of the matter and each of the parties has now had the opportunity to make submissions in connection therewith.

5. The issue as to the rate or rates at which the receiver's assistant, Mr Warwick Davis, should be paid was the only substantive matter upon which the plaintiff succeeded. Nevertheless, it was a question arising generally out of the receivership. It was proper that the court should rule on it.

6. I make no order as to the costs of litigating this question.

7. The other issues were objections to various items in the accounts. They were either without substance or precluded from further challenge by prior proceedings. The only exception was a trivial claim for $300.00 removal expenses for the removal of a tractor. Counsel for the receiver ensured that no time was wasted upon it.

8. In my view, the objections referred to were vexatious and/or frivolous. The plaintiff should pay the second and fifth defendants' costs thereof on an indemnity basis.