Fine, Mervyn Keith Stanley & Anor v Howell, Paul Roch [1995] FCA 1066

Fine, Mervyn Keith Stanley & Anor v Howell, Paul Roch [1995] FCA 1066

The ex parte application was made without disclosing clearly relevant, strongly contested Equity Division proceedings between the parties, which were being heard at almost the same time and bore on the company's solvency, and without notifying a legally represented party that was closely concerned with the application. The failure was serious and justified ordering Paul Roch Howell to pay the relevant costs on an indemnity basis, to pay the provisional liquidator's costs and professional fees and charges, and dismissing the proceedings to achieve finality.

Jurisdiction
Australia
Judgment Date
22 November 1995
Procedural Posture
Corporations Law Proceedings Involving an Ex Parte Application and Subsequent Notice of Motion for Costs and Dismissal / Extempore Reasons on Orders 7 and 4 in the Notice of Motion After Ex Parte Orders Had Been Set Aside
Outcome
Proceedings dismissed and costs ordered against Paul Roch Howell on an indemnity basis, with payment of the former provisional liquidator's other costs and professional fees and charges.
Legal Topics
['ex Parte Application' 'duty of Disclosure' 'failure to Disclose Relevant Material' 'indemnity Costs' 'provisional Liquidator' 'dismissal of Proceedings']
['practice and Procedure' 'corporations Law' 'costs'] ['ex Parte Application' 'duty of Disclosure' 'failure to Disclose Relevant Material' 'indemnity Costs' 'provisional Liquidator' 'dismissal of Proceedings']

Case Brief

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Procedural Posture

Corporations Law Proceedings Involving an Ex Parte Application and Subsequent Notice of Motion for Costs and Dismissal / Extempore Reasons on Orders 7 and 4 in the Notice of Motion After Ex Parte Orders Had Been Set Aside

Legal Issues

  1. 1 ["Whether the failure to disclose related Supreme Court of New South Wales Equity Division proceedings and related circumstances on an ex parte application warranted indemnity costs and payment of the provisional liquidator's fees and charges." "Whether the proceedings commenced by Paul Roch Howell's application of 14 November 1995 should be dismissed rather than left on foot for renewed applications."]

Ratio Decidendi

The ex parte application was made without disclosing clearly relevant, strongly contested Equity Division proceedings between the parties, which were being heard at almost the same time and bore on the company's solvency, and without notifying a legally represented party that was closely concerned with the application. The failure was serious and justified ordering Paul Roch Howell to pay the relevant costs on an indemnity basis, to pay the provisional liquidator's costs and professional fees and charges, and dismissing the proceedings to achieve finality.

Court Disposition

Proceedings dismissed and costs ordered against Paul Roch Howell on an indemnity basis, with payment of the former provisional liquidator's other costs and professional fees and charges.

Orders

  • ['THAT the Applicant in the proceedings, Paul Roch Howell, pay: (a) the costs in these proceedings of: (i) the Respondent in the proceedings; (ii) the present applicants; and (iii) Hugh Jenner Wiley, on an indemnity basis; and (b) all other costs and professional fees and charges of Hugh Jenner Wiley incurred or...