A V Jennings Ltd v First Provincial Building Society Ltd
[1996] FCA 551
•7 Jun 1996
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) No. QG 42 of 1996
GENERAL DIVISION )
BETWEEN: A.V. JENNINGS LIMITED
Applicant
AND: FIRST PROVINCIAL BUILDING SOCIETY LIMITED
Respondent
CORAM: SPENDER J
PLACE: BRISBANE
DATE: 7 JUNE 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
Leave pursuant to O 62 of the Federal Court Rules forthwith to tax the costs which Lehane J ordered on 10 April 1996, is declined.
The respondent file and serve the applicant with any request for particulars by 13 June 1996.
The applicant file and serve the respondent with its answers to the respondent's request for particulars by 27 June 1996.
The respondent file and serve the applicant with its defence by 25 July 1996, or if no request for particulars is served by the respondent pursuant to Order 2, its defence shall be filed and served by 11 July 1996.
The applicant is to have the costs of today, to be taxed if not agreed.
This matter be listed for further directions on 16 August 1996 at 9.30 am.
THE COURT GRANTS liberty to apply on three days' notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) No. QG 42 of 1996
GENERAL DIVISION )
BETWEEN: A.V. JENNINGS LIMITED
Applicant
AND: FIRST PROVINCIAL BUILDING SOCIETY LIMITED
Respondent
CORAM: SPENDER J
PLACE: BRISBANE
DATE: 7 JUNE 1996
REASONS FOR JUDGMENT
This is a motion seeking leave pursuant to O 62 of the Federal Court Rules forthwith to tax costs which Lehane J made on 10 April 1996.
The provisions of O 62 are such that, without leave from a court, the taxation of those costs will be postponed until the determination of the principal proceedings. The manifest intention of O 62 is to prevent interlocutory costs orders being used oppressively by the party in whose favour interlocutory costs have been ordered, and to prevent applications being brought simply for the purpose of obtaining interlocutory costs orders so that the threat of taxation of those costs can be used as a means of affecting the litigation, including the enforcing of unfair settlements.
There is a further consideration, that since interlocutory costs orders involve issues which are different from the issues at a final trial, it may very well be that, at the end of the day when the trial is concluded, the party against whom the interlocutory costs orders is successful in the principal litigation, so that there is, on balance of account, an amount owed by the party in whose favour interlocutory costs have been ordered. In those circumstances, it is felt that, without leave, a person who has interlocutory costs should not be able to tax them against the possibility that there is a balance of account the other way.
It has to be recognised that people ought not to be kept out of their costs if it is right in the circumstances to regard that aspect of the matter as being resolved and there are no competing matters such as the possibility that the final trial might result in contra orders. Notwithstanding the matters which Mr Dunning has urged for the grant of leave for the taxation now of the costs orders made by Lehane J, I am not persuaded that I ought to do that, and that the ordinary consequences of the costs order should obtain in this case.
While it is only one small factor, no application was made to his Honour for leave forthwith to tax those costs that he ordered. The nature of the application was the refusal of a mandatory injunction requiring First Provincial Building Society to provide finance. It is not surprising that that application was unsuccessful, having regard to a consideration that damages, in all probability, are an adequate remedy for any complaint by A.V. Jennings Limited that is valid . I decline leave. A.V. Jennings is to have the costs of the application for leave, to be taxed if not agreed.
I make the other orders in terms of the draft which I initial, date and place with the papers. I have deleted Order 4 and I have amended what was Order 7 and now becomes Order 6 by adding that the matter be listed for further directions on 16 August 1996 at 9.30am.
I certify that this and the preceding two pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.
Associate
Date: 7 June 1996
Solicitors for the applicant : Barker Gosling
Counsel for the respondent : Mr P J Dunning
instructed by : McCullough Robertson
Date of Hearing : 7 June 1996
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