Fleming & Anor v Dyason & Anor [2010] FMCA 669 (3 September 2010)

Last Updated: 6 September 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FLEMING & ANOR v DYASON & ANOR

[2010] FMCA 669

BANKRUPTCY – Initial application for relief under s.66G of the Conveyancing Act 1919 (NSW) – short minutes of order made by consent by a Registrar – orders provided for a stay to prepare payout figure to annul bankruptcy – dispute in respect to terminology within order – Application in a Case filed – Application in a Case discontinued – Costs.

Bankruptcy Act 1966 (Cth), ss.30, 58(1)(b), 58(6) Conveyancing Act 1919 (NSW), ss.66G, 77(1) Federal Magistrates Court Rules 2001(Cth), rr.13.01, 13.02

Monaghan v Holroyd City Council [2009] NSWLEC 112 ONE.Tel Ltd & Ors v Deputy Commissioner of Taxation [2000] FCA 270 Park v Barclay [2010] FMCA 397 Ray Fitzpatrick Pty Ltd v Minister for Planning (No 5) [2008] NSWLEC 183 Re Hadwick (1976) 13ALR 641 Re Skase; Ex parte Donnelly [1992] FCA 429; (1992) 37 FCR 509 Stunning Enterprises Pty Ltd v QIE Pty Ltd [2004] FCA 786

First Applicant:

ELIZABETH ANN FLEMING (PREVIOUSLY KNOWN AS ELIZABETH OCCLESHAW)

Second Applicant:

SCOTT DARREN PASCOE

First Respondent:

LINDSEY JANE DYASON

Second Respondent:

ARTHUR LINDEN DYASON

File Number:

SYG 686 of 2010

Judgment of:

Lloyd-Jones FM

Hearing date:

3 August 2010

Delivered at:

Sydney

Delivered on:

3 September 2010

REPRESENTATION

Counsel for the Applicant:

Brian Skinner

Solicitors for the Applicant:

Goldrick Farrell Mullan with Alexander & Associates Solicitors

Counsel for the Respondents:

Mr H Stowe

Solicitors for the Respondents:

Fishburn Watson O’Brien

ORDERS

(1) The orders made in this matter on 4 May 2010, by consent of the parties, are vacated.
(2) The application filed on 29 March 2010 is discontinued.
(3) No order as to costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 686 of 2010

ELIZABETH ANN FLEMING & ANOR

Applicant

And

LINDSEY JANE DYASON

First Respondent

ARTHUR LINDEN DYASON

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 29 March 2010 an application was filed in this Court seeking orders pursuant to ss.30, 58(1)(b) and s.58(6) of the Bankruptcy Act 1966 (Cth) (“the Act”) and ss.66G, 77(1)(e) – (g) of the Conveyancing Act 1919 (NSW) and s.18 of the Federal Magistrates Court Act 1999 (Cth). This application was listed for hearing before a Registrar of this Court on 4 May 2010. At that hearing, the parties handed up short minutes of order which effectively put an end to the matter. Included in the terminology of those draft orders was a stay of the orders which were provided for the Applicant to provide a pay-out figure to annul the Bankruptcy of the Second Respondent, Arthur Linden Dyason.
   A provision of the minutes of order were that they were to be complied with by 11 May 2010. Registrar Hedge referred the matter to this Court for execution of the consent orders and I issued sealed orders on 4 May 2010.
2. Subsequent to that date, a dispute has arisen concerning the terminology contained within those orders with respect to the calculation of the pay-out figure. Consequently, a Notice of Motion was filed in Court on 8 June 2010 seeking a declaration of the proper construction of Order 2 of the 4 May 2010 orders. The matter was listed for hearing on 3 August 2010.
3. At the commencement of that hearing, the Court was advised by Mr Skinner, appearing for the Applicants, that his side had become aware of a matter for the Queensland Registry of this Court which put into question the jurisdiction of the Federal Magistrates Court to make orders appointing Trustees for sale. The representatives of the Applicants indicate that they wish to vacate the consent orders made on 4 May 2010 and wish to have the proceedings in this matter discontinued as they intend to pursue the issue in proceedings before the Supreme Court of New South Wales.
4. That leaves the remaining issue between the parties to a question of costs. Mr Skinner advised the Court that his instructions were to seek no order as to costs.
5. Mr Stowe, representing the Respondents, indicated that his position was that a costs order should be made in favour of the Respondents.

Respondents’ submissions

6. Mr Stowe acknowledged that his clients could not raise objection to the Applicants discontinuing, but wished to raise the issue of costs of these proceedings, which were significant, and that a costs order could be made in favour of the Respondents in this matter for the following reasons. Firstly, the ordinary rule is that a discontinuing party must pay the costs of the defendants in respect to the discontinued proceedings, but acknowledged that there were some qualifications applied to the general rule.
7. Secondly, this is recognised as being applicable in circumstances where there is a capitulation by the Applicant in respect of a cause of action it presses, and it appears that the Applicant acknowledges that the Applicant does not have the jurisdiction to seek the orders in the proceedings that is sought. Mr Stowe contends that the general rule is reinforced by the fact that there is a capitulation by the Applicant in relation to its capacity to obtain relief that it seeks and that strongly reinforces the basis for the ordinary rule that the Applicant pay the Respondent’s costs.
8. Thirdly, these circumstances weigh very strongly in favour of costs being ordered, in that there is a strong contention in favour of opposition to the discontinuance itself. In support of this contention, Mr Stowe referred to the orders made on 4 May 2010 in respect of the sale of the jointly held property, which is very substantially conditioned in those orders. Order 1 provides for a standard order of sale for a jointly owned property and there is no contention in respect of that order. Order 2 provides that Order 1 is stayed up to and including
   1 June 2010 by agreement that:
   1. The Applicants provide a pay-out figure to annul the Bankruptcy of Arthur Dyason by 11 May 2010.
   2. The Respondents cause to pay to the Applicants the sum referred to in (i) by 1 June 2010.

Consequently, the order provides a stay of the joint sale of the property until the Applicants and the Trustee, provide a final and unconditional pay-out figure to secure the annulment.

9. Mr Stowe contends that Order 2 was a matter that was agreed between the parties and was substantially significant to the Respondents. What the Respondents get from the order is the security of knowing exactly what it takes to procure the annulment and that was a critical part of the orders that were agreed on that occasion. A dispute has arisen between the parties as to the proper construction of that order. The Respondents say that on its proper construction, it has the meaning that the Trustee must provide a final annulment figure, a figure which, if paid, would secure the annulment. Whereas, the Applicants say that on its proper construction, it should only be construed as being an estimate, leaving the Trustee at complete liberty to notify the bankrupt of other costs incurred before or after that date which are necessary to be paid before the annulment can be secured.
10. Mr Stowe submits that these proceedings were listed before the hearing of the Respondents’ motion, that on the proper construction of that order, it should be construed as being a final and unconditional pay-out. Now, the Applicants appear not to wish to have that contest, and indicate they wish to discontinue these proceedings, avoid any sanction with respect to costs and simply start again in the Supreme Court; unfettered and unshackled by what was a critical condition of the original agreement. Mr Stowe contends that the Applicants simply want to remove the burden, the shackle or the condition, that which was fundamental to the Respondents’ agreement to those orders. It was submitted that this was a further factor which weighs in favour of the Court ordering the ordinary rule as to costs. It also gives rise to the further matter as to whether or not the Trustee can seek indemnity from the estate in respect of costs it has incurred and has thrown away in these proceedings.

Applicants’ submissions

11. Mr Skinner, appearing for the Applicant, submits that costs are discretionary. The problem that has arisen in this matter is not a shackle imposed by the Court, but rather a condition imposed by the parties themselves. It is a matter in which the Applicants say there is a clear dispute about the wording of the orders to which the parties agree. They were voidable at best, and both parties have therefore made a mistake in terms of the wording of that agreement. Mr Skinner submits that this leads to an impossible situation and in those circumstances the proper course is for the Trustee to ask for all of the orders made on 4 May 2010 to be vacated. It would be unconscionable for the Trustee to try to put a gloss on the meaning of those words, when clearly one party had one interpretation and the other had another interpretation. That is, there is a degree of impossibility about the agreed orders. It is submitted that there are no costs thrown away because the evidence that has been filed in this Court, will be filed in due course in the Supreme Court.
12. Mr Skinner contends that there is no capitulation because this is a matter that has arisen that is of some doubt and rather than enter into a jurisdictional fight in this Court, the better course is to simply commence in the Supreme Court. Doubt has arisen since the making of the orders and in those circumstances, no criticism can be made of any party in the proceedings in the way that the orders were brought about. The proper course is to resolve this matter quickly and efficiently and that is what the Applicants are seeking to do by discontinuing the matter with no order as to costs.

Consideration

13. Under s.32 of the Act, the award of costs is vested in the discretion of the Court. Ordinarily, in the absence of special circumstances, costs follow the event but the Court is entitled to examine the conduct of the parties in the case and the circumstances out of which the costs arose: Re Skase; Ex parte Donnelly [1992] FCA 429; (1992) 37 FCR 509 per Drummond J at 522. Section 32 makes it clear that a litigant will only claim costs as a consequence of a discretionary order, and not as a matter of right: Re Hadwick (1976) 13ALR 641.
14. It is recognised that this discretion is exercised in accordance with properly established and applied guidelines and with respect to discontinuance these guidelines are clear. The starting point is the discontinuing party pays the opponents costs unless there is a good reason why that is not the case. The procedure regarding notices of discontinuance are contained in Part 13, r.13.01 and r.13.02 of the Federal Magistrates Court Rules 2001(Cth) (“the rules”). The major difference between the rules of this Court and those of the Federal Court is that under r.13.02, if a party discontinues an application, the other party may apply for costs or such application must be made within 28 days after the service of the Notice of Discontinuance, unless the Court or Registrar otherwise directs. The procedure in the Federal Court is that costs automatically follow the Notice of Discontinuance.
15. In Stunning Enterprises Pty Ltd v QIE Pty Ltd [2004] FCA 786 His Honour French J (as he then was) made the following observations in respect of the general rule as to costs:
    • [31] As a general rule, in the absence of special circumstances justifying some other order costs will follow the event. The general principles were discussed by the Full Court in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229. When proceedings terminate before a hearing there may be no basis upon which to determine what the event would have been if the matter had proceeded. The Court cannot, in such a case, conduct an hypothetical action between the parties. If both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled, the Court will usually make no order as to the costs of the proceedings — Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624 (McHugh J). Where, however, the proceedings have been terminated in a way that leads to one side being clearly successful then there is a basis upon which the Court can exercise its discretion in favour of the successful party. As Burchett J said in ONE.TEL Ltd v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 at [6]:
    • ... it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court’s discretion otherwise than by an award of costs to the successful party.
16. In ONE.Tel Ltd & Ors v Deputy Commissioner of Taxation [2000] FCA 270 His Honour Burchadt J at [5]-[6] refused the authorities in respect to the award of costs where a matter has been discontinued before hearing. His Honour states:
    • [5] It is accepted that, in a case which terminates before there has been a hearing, the Court should not resolve the issue of costs by engaging in something in the nature of a hypothetical trial: Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585; (1993) 44 FCR 194 at 201; Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624. But this does not mean that the Court can never make an order for costs. Often, it will be unable to do so; but in other cases an examination of the reasonableness of the conduct of the parties, respectively, may provide the basis of an order, or "a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried", as McHugh J put it in Ex parte Lai Qin at 625. His Honour added:
    • "If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings."
    • Although his Honour thought this would "usually" be so, he made it clear that he was not laying down an invariable rule. At the beginning of his discussion of the applicable principles (at 624), he referred to the discretionary nature of the power to order costs, and to the "general rule [that] the successful party is entitled to his or her costs", and he said:
    • "In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action."
    • As Sackville J pointed out in Rizal v Minister for Immigration and Multicultural Affairs [1999] FCA 334 at para16, the remarks made by McHugh J evince "a somewhat more flexible approach" than that taken by the Court in Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 at 287, when it suggested that "there will be very few cases where the issues will be sufficiently clear, in the absence of a hearing, for an order for costs to be made in favour of a party." What is well established is that frequently the determining factor will be the reasonableness of the conduct of the parties, a matter which was emphasized in each of the decisions I have cited, and also in Reddy v Hughes (1996) 37 IPR 413; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1999] FCA 119; and Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772. In the last case, Cooper J commented (at 774), concerning the principles laid down in Australian Securities Commission v Aust-Home Investments:
    • "These propositions are of assistance in focusing attention upon some of the relevant circumstances which should be considered in the exercise of the discretion to award costs where proceedings do not proceed to a final hearing. However they are not the only circumstances; nor are they intended to limit the discretion."
    • [6] In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs. In Ex Parte Lai Qin, McHugh J was careful to state (at 624) that the principles with which he was concerned were those that "govern an application for costs when a party elects not to pursue an action because he or she has achieved the relief sought in the action either by settlement or by extra-curial means". As his Honour recounted the facts, the instant case was one where the Applicant had challenged a decision of the Refugee Review Tribunal denying her status as a refugee but, during the pendency of her action in the High Court, the Minister had exercised his special discretion in her favour under s417 of the Migration Act 1958. The question whether the Tribunal had or had not erred in law thus became moot. Sun Zhan Qui v Minister for Immigration and Ethnic Affairs was a similar case. Following the decision of the Full Court in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, the Minister exercised his discretion under s417, with the result that an outstanding proceeding in respect of one of several decisions of the Refugee Review Tribunal lost any significance for either party. Beaumont J followed Ex parte Lai Qin. Gribbles v Health Insurance Commission was a variation on the theme. There, the Health Insurance Commission was sued by a pathologist because it declined to recognize particular services as eligible for the payment of Medicare benefits; but during the pendency of the proceeding, certain arrangements affecting the performance of the services were changed, with the result that the Commission reversed its decision. The original dispute thus ceased to have any significance, and the argument about the appropriate costs order had to take place in the absence of any determination of the merits. Again, in Australian Securities Commission v Aust-Home Investments Ltd and in Australian Securities Commission v Berona Investments Pty Ltd, as Cooper J put it in the latter case (at 777), "events had overtaken the proceedings". The relief originally sought was no longer required, and the proceedings were terminated without any decision on the merits. Neither side had won or lost (see the former case at 202, and the latter at 777). Reddy v Hughes and Rizal v Minister for Immigration and Multicultural Affairs perhaps each turned even more clearly on an assessment of the reasonableness of a party's behaviour. In Reddy v Hughes, the Respondent had offered the Applicant a substantially complete remedy before the institution of proceedings, and Branson J held (at 415) that her Honour was "not able to be satisfied that the Applicant acted reasonably in commencing the proceeding". In Rizal, although the Applicant achieved the result he sought by his proceeding in the Court, there was an "at least arguable" objection to the Court's jurisdiction to entertain the application, and a proposed amendment to overcome the jurisdictional problem would have required leave to file an application long out of time. That leave had not been granted when the proceeding became moot because of the Minister's plainly reasonable decision to reconsider the request the previous rejection of which was the subject and casus belli of the litigation.
17. In Ray Fitzpatrick Pty Ltd v Minister for Planning (No 5) [2008] NSWLEC 183 His Honour Sheehan J reviewed the authorities concerning the authority on costs at [36]-[39] where His Honour stated:
    • [36] In this court the learned present Chief Judge endeavoured to collect the key costs principles in his judgment in Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 (“Grant”) (a case in Class 4 of the court’s jurisdiction). I have also had regard to Bignold J’s decision in Parnell v Roads and Traffic Authority of New South Wales (1995) 88 LGERA 261 (“Parnell”); Lloyd J’s decision in Canterbury City Council v Roads and Traffic Authority of New South Wales [2004] NSWLEC 536 (“Canterbury”); Biscoe J’s judgments in Niezabitowski and Evagelakos; and Talbot J’s decision in Geoffrey v Roads and Traffic Authority of NSW [2007] NSWLEC 405 (“Geoffrey”), all five of which were JTC Act cases.
    • [37] All courts follow the Latoudis principle that costs orders are designed to “compensate” the beneficiary of the order for its costs reasonably incurred in the conduct of the litigation, rather than “punish” the other party (see Latoudis at 566–7). Costs are in the discretion of the court, and do not always fall on the unsuccessful party to the advantage of the successful party, however one defines “success” in the particular case at hand.
    • [38] As Bryson JA noted in Australiawide (at [46]), Oshlack confirms that “[c]osts discretions are truly discretionary and are not closely confined by appellate authority”. His Honour quoted from Burchett J’s judgment in One.Tel (at 553, para [6]):
      • [6] In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the court's discretion otherwise than by an award of costs by the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs.
    • [39] Bryson JA also observed that the law had moved away from “the prescriptive view taken in an earlier age”. Each case is determined on its own facts and merits. There is no absolute rule or irrefutable presumption. What may be seen as a “usual” position is not an “invariable” position. The now prevailing “rule” is that “costs follow the event” unless, in its discretion, the court concludes that it should “otherwise order”. The “event” has been defined as “the practical result of a particular claim”, and the costs discretion must always be exercised judicially, to achieve an outcome which is “just” in all the circumstances. The conduct of the litigation by and on behalf of all parties must be examined to find “entitling” or “disentitling” conduct. The “reasonableness” of their behaviour at each stage must be assessed, in order to decide if costs are to be ordered, and, if so, whether on a party-party or indemnity basis. There is no absolute rule that, in the absence of “disentitling” conduct, a party seen as “successful” in the proceedings will necessarily be compensated for its costs by the unsuccessful party (see Oshlack and Fordyce).
18. Again in Monaghan v Holroyd City Council [2009] NSWLEC 112 His Honour Sheehan J provided an effective summary of the key principles to be considered when making a costs determination. At [83] His Honour states:
    • [83] Some of the key principles should be collected before I proceed to explain how I have reached my decision(s) in these costs applications:
    • (a) Costs are compensatory, not punitive: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, at 566–7.
    • (b) The power to award them is “purely discretionary”: Oshlack v Richmond River Council [1998] HCA 11 ; [1998] HCA 11; (1998) 193 CLR 72.
    • (c) The discretion must be exercised “judicially”: Port Stephens Council v Sansom (“Sansom”) [2007] NSWCA 299 ; (2007) 156 LGERA 125. On its exercise in classes 1 and 2 matters, see Arden Anglican School v Hornsby [2008] NSWLEC 103 ; (2008) 158 LGERA 224, and my discussion in Universal at [5]–[14].
    • (d) The court needs to find “some positive ground or good reason for departing from the ordinary course”: Australiawide Airlines Ltd t/as Regional Express v Aspirion Pty Ltd [2006] NSWCA 365, at [54] per Bryson JA See also Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323 ; [2006] NSWCA 323; (2006) 149 LGERA 360 at [219]–[251].
    • (e) There is no absolute rule that, in the absence of “disentitling” conduct, the party seen as “successful” will achieve a compensatory costs order: Fordyce v Fordham [2006] NSWCA 274; (2006) 67 NSWLR 497.
    • (f) “Effective surrender” by one party may indicate “success” on the part of the other, but does not necessarily dictate a costs order: One. Tel Ltd v DCT [2000] FCA 270 ; (2000) 101 FCR 548.
    • (g) The court must look at all the circumstances pertaining to each particular stage of the litigation: South Eastern Sydney Area Health Service v King [2006] NSWCA 2, per Hunt AJA; and Green per Santow JA.
    • (h) “Precipitately” commencing proceedings may become a relevant factor: Newcastle City Council v Wescombe [2008] NSWLEC 301, at [16].
    • (i) On whether an order should be for “indemnity costs” see my decision in Fitzpatrick No5 at [10]–[79], especially [79] viz:
    • To result in an order for indemnity costs the behaviour of the party concerned, whether generally or in regard to its rejection of an offer of compromise, must be found to be “imprudent”, “unreasonable”, or tainted by fraud, misconduct, an ulterior motive, wilful disregard for known facts or settled law, groundless contentions, “disentitling conduct”, “plainly unreasonable conduct”, or “relevant delinquency” (see Santow JA in Green, summarising various cases. See also Oshlack, Ritchie 8752, and Canterbury City Council v Roads and Traffic Authority of New South Wales [2004] NSWLEC 536). Even so, as Lloyd J concluded in Canterbury, the rejection of a reasonable offer is but “one among many” factors to be considered.
19. In the preliminary submissions made by Mr Skinner outlining the issue before the Court, referred to an application before the Queensland Registry of this Court in respect to the making of orders appointing Trustees for sale and the question that has arisen whether the Court has jurisdiction under s.30 of the Act to make these orders. This Court did not have the benefit of submissions identifying that matter and the respective outcome however I presume that reference was being made to the decision of His Honour FM Jarrett in Park v Barclay [2010] FMCA 397. In that judgment His Honour makes an extensive review of the authorities and makes the following finding:
    • [38] In my view, this court does not have power to make an order for sale under s 30(1) of the Bankruptcy Act against a co-owner of real property and who is not the relevant bankrupt. As Neaves J pointed out in Re Bilen s 30(1) deals with the courts powers, not jurisdiction. The relevant jurisdiction must be “found elsewhere”.
    • [39] As is demonstrated by Lynn v White on appeal, the power to make an order that real property the subject of co-ownership be sold where the co-owner is not otherwise a party to the bankruptcy must be found in the state law and in the case of Queensland, s 38 of the Property Law Act 1974 (Qld).
    • [40] I was taken to no other section in the Bankruptcy Act which was said to give rise to the relevant jurisdiction. It is possible that the court has jurisdiction to make the orders sought in this matter as an exercise of its associated jurisdiction: s 18 of the Federal Magistrates Act 1999. But before the court’s associated jurisdiction arises it is necessary to have before it a properly constituted federal matter: Phillip Morris Inc v Adam P Brown Male Fashions Proprietary Ltd ; United States Surgical v Hospital Products (1981) 148 CLR 457. There must be pending in this court an application which engages this court’s original federal jurisdiction before recourse can be had to its associated jurisdiction.
20. I am satisfied that since this matter was commenced in this Court by the filing of an application dated 29 March 2010 there has occurred an intervening event by the handing down of the decision in Park v Barclay on 6 May 2010 which has raised a question in respect of the jurisdiction of this Court to make orders that were requested in that application. The consent orders entered into by the parties on 4 May which were sealed and entered on that date were made without jurisdiction when considered in light of the decision in Park v Barclay (supra). A subsequent dispute has arisen between the parties on the interpretation of the contents of the consent orders which has brought the matter back before this Court by the filing of a Notice of Motion on 8 June 2010. The further pursuit of the issues raised in the Notice of Motion would be fruitless in light of the issues that have been ventilated in Park v Barclay. The most appropriate course to follow in endeavouring to resolve this matter quickly and efficiently is to terminate the proceedings in this Court and commence a new action in the Supreme Court of New South Wales which has the appropriate jurisdiction to deal with this issue. I am satisfied that there has been no capitulation due to the identification of the issue of jurisdiction because at the time of filing these proceedings it was believed by the parties that this court was the appropriate venue for pursuing this claim. There is no challenge to jurisdiction on the part of the Respondents at any stage of the proceedings until Mr Skinner informed the Court that he had received instructions to seek an order for discontinuance on becoming aware that the matter was out of jurisdiction for this court.
21. If the Respondent sought to press the Notice of Motion seeking argument before this Court that would be a fruitless exercise as ultimately the orders deemed sought in the proceedings could not be made by this Court.
22. Argument advanced by Mr Stow on behalf of the Respondents claimed that substantial resources have been applied by the Respondents in preparing for this matter. This submission was not advanced or supported by evidence however on the court file before me there are two substantial affidavits (one of 153 pages, the other of 173 pages) filed by the Applicant. The material filed on behalf of the Respondents are brief affidavits of Arhtur Lindsay Dyason, 3 pages, Lindsay Jane Dyason, 2 pages and Stephen Geoffrey Campbell of 8 pages with annexures. I am satisfied that these affidavits could be reformatted and filed in any proceedings pursued in the Supreme Court and would not result in the work employed in their preparation to be thrown away. No other preparation costs are before me.
23. Consequently, I believe that the most effective and efficient resolution of this issue is achieved by the vacating of the orders made by this Court on 4 May 2010, the discontinuance of the proceedings filed on 29 March 2010 and that there be no order as to costs.

I certify that the preceding 23Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twenty-threetwenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 3 September 2010