Wende and Ors v Horwath (NSW) Pty Limited [2014] HCATrans 267 (26 November 2014)

Last Updated: 2 December 2014

[2014] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S127 of 2010

B e t w e e n -

HERBERT WENDE

First Applicant

MARGARET WENDE

Second Applicant

MARK LLOYD

Third Applicant

and

HORWATH (NSW) PTY LIMITED

Respondent

Summons

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 26 NOVEMBER 2014, AT 9.59 AM

Copyright in the High Court of Australia

MR G.E. BABE: May it please the Court, I appear for the applicants and respondents on the summons. (instructed by Clear Lawyers)

MR A.M. McMURRAN: May it please the Court, I appear for the respondent. (instructed by Diamond Conway Lawyers)

HER HONOUR: Yes, Mr McMurran.

MR McMURRAN: Thank you, your Honour. Perhaps it is appropriate if I just take your Honour very quickly to the material. There is an affidavit from Vanessa Marquez Vallejo. There is an error in that affidavit as to a date, your Honour, which I would seek to amend. It is simply a date. It appears at paragraph 16 of her affidavit, and for your Honour’s benefit, Ms Vallejo Marquez is present in Court with me. It should be December 2013, your Honour. I apologise for that transcription error.

HER HONOUR: Yes, I see. Thank you.

MR McMURRAN: Other than that, the applicant on this summons, your Honour, which is my client, and the respondent in the proceedings, seeks to rely on that material; that is, the affidavit of Ms - - -

HER HONOUR: Yes. Now, as I understand it, Mr Babe, there is no opposition to the relief claimed in the summons. The issue that seems to be live, perhaps unsurprisingly, is costs.

MR BABE: That is correct, your Honour.

HER HONOUR: Yes. I say “unsurprisingly” simply in light of the unedifying history in the affidavit.

MR BABE: That is correct, your Honour.

HER HONOUR: Yes, very well. Well, I have read the affidavit of Ms Vallejo, and in light of the attitude of the applicants in the proceedings, the respondents to the costs summons, I am disposed to make the order that is sought so one comes back to the question of the costs of the summons. Mr McMurran.

MR McMURRAN: Thank you, your Honour. I only have two simple submissions to make in relation to that, your Honour. Firstly, very simply, the applicant on the summons, the respondent in the proceedings seeks no order for costs in relation to the summons, so we are not seeking orders.

HER HONOUR: Yes.

MR McMURRAN: The applicants in these proceedings – ironically, your Honour, when they were first before this Court in respect of the application for special leave sought an indulgence from my client in relation to filing documents which were then out of time, and that indulgence was granted without any palaver, any delay or any obfuscation on the part of the respondent. I do not say that in any pejorative way, your Honour, it is simply the fact.

We would say in this instance that you only need to state the proposition on their side, which is that they seek to come here and ask for costs when they are not opposing the application to ask yourself for what end. The material that is in the submissions produced by the applicants, we do not cavil with any of that, your Honour, save that we say in relation to rule 51, it has no application in these proceedings. It may have application in current proceedings but this is not, and it is not an interlocutory application.

HER HONOUR: Yes.

MR McMURRAN: The Court, quite appropriately, has dealt with it. Admittedly, it was three years ago, but this matter is of no surprise, no moment to the applicants at all, and there has been a wealth of correspondence, if I may use that expression, passed between the parties since May of 2011, and on each occasion that material is not in evidence to your Honour because it deals with matters without prejudice and on a Calderbank basis. It is not appropriate in my view or submission that the Court needs to have that detail before it, but it is simply not correct to say there has been nothing for three years – quite the contrary. I have nothing further to add, your Honour, unless - - -

HER HONOUR: I think the one point raised in the submissions on behalf of the applicants is the suggestion that there is no reason why the leave question could not have been dealt with by a consent order.

MR McMURRAN: I suspect that is correct, your Honour, and I do not, again, cavil with that, but it is part of the litany of applications and cross-applications and litigation in this matter which has gone on for a decade, and I note your Honour’s comments and I can only but accept and agree with them. Your Honour, in my submission, there should be no order for costs in these proceedings.

HER HONOUR: Yes. Mr Babe.

MR BABE: Your Honour, just to address one of the points in which my friend has addressed your Honour, that is, the previous correspondence which was mentioned of the High Court costs. Now, I just wish to clarify

for your Honour that I have never sought to put the proposition any higher than there was no prior notice of the intention to bring this application for leave. There has been no suggestion that the High Court costs have simply been left to drift unnoticed for three and a half years, but it is the question of leave.

HER HONOUR: Well, in those circumstances, Mr Babe, why should costs not lie where they are in respect of the summons?

MR BABE: That brings me back, your Honour, to the point that you raised a short time ago which was that because the application for leave was not raised there was no opportunity to deal with this by consent which would have saved time and costs for each of the parties. Save for that, the only other matters I would wish to address, your Honour, are already addressed in my submissions.

HER HONOUR: Yes. Mr Babe, in circumstances in which as I understand it is common ground the question of the costs of the special leave application has been the subject of some continued communication between the parties. There is no opposition to the making of the order that is sought that in the context of the history of the proceedings it is perhaps understandable that whilst the parties were attending to the other lively costs issues the bill of costs in the special leave application was not filed in a timely fashion. In all the circumstances, I am disposed to think the appropriate order is to make no order with respect to the costs of the summons.

MR BABE: May it please.

MR McMURRAN: If it please the Court.

HER HONOUR: I order pursuant to rule 4.03.2 of the High Court Rules 2004 (Cth) that the respondent has leave to file a bill of costs in the form exhibited at exhibit VMV1 to the affidavit of Vanessa Marquez Vallejo, sworn on 5 November 2014. I make no order as to the costs of the summons. The Court will adjourn.

AT 10.07 AM THE MATTER WAS CONCLUDED