Alpine Beef Pty Ltd v Trycill Pty Ltd (No. 2) - [2010] FCA 286

FEDERAL COURT OF AUSTRALIA
Alpine Beef Pty Ltd v Trycill Pty Ltd (No. 2) [2010] FCA 286

Citation: Alpine Beef Pty Ltd v Trycill Pty Ltd (No. 2) [2010] FCA 286

Parties: ALPINE BEEF PTY LTD (FORMERLY KNOWN AS CEETEX PTY LTD) (ACN 088 887 209) v
TRYCILL PTY LTD (ACN 003 304 845) AND ORS

File number: NSD 232 of 2009

Judge: FLICK J

Date of judgment: 25 March 2010

Catchwords: PRACTICE AND PROCEDURE – costs – costs sought on an indemnity basis – limitation period – difficulties raised in correspondence – offer of compromise

Legislation: Federal Court of Australia Act 1976 (Cth), ss 43, 59(1), 59(2)
Federal Court Rules, O 23 rr 2–4

Cases cited: Alpine Beef Pty Ltd v Trycill Pty Ltd [2010] FCA 136, cited
Colgate-Palmolive Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225, cited
DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251, cited
Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496, cited
Olivaylle Pty Ltd v Flottweg GMBH and Co KGAA (No 5) [2009] FCA 571, cited
Ruaro v Ferrari [2008] FCA 307, cited
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, cited
Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1530, cited
Szencorp Pty Ltd v Clean Energy Council Ltd (No 2) [2009] FCA 196, cited
Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court of Australia, 3 May 1991), cited
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213, cited

Date of last submissions: 19 March 2010

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of Paragraphs: 16

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

NSD 232 of 2009

BETWEEN: ALPINE BEEF PTY LTD (FORMERLY KNOWN AS CEETEX PTY LTD)(ACN 088 887 209)
Applicant

AND:

TRYCILL PTY LTD (ACN 003 304 845)
First Respondent

PETER WILLIAM ULLRICH
Second Respondent

SARI ROSALIND ULLRICH
Third Respondent

JUDGE:

FLICK J

DATE OF ORDER:

25 MARCH 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Order 2 as made on 1 March 2010 is varied such that the Applicant is to pay the costs of the Respondents, with such costs as have been incurred as from 5 August 2009 to be paid on an indemnity basis.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

NSD 232 of 2009

BETWEEN: ALPINE BEEF PTY LTD (FORMERLY KNOWN AS CEETEX PTY LIMITED)(ACN 088 887 209)
Applicant

AND:

TRYCILL PTY LTD (ACN 003 304 845)
First Respondent

PETER WILLIAM ULLRICH
Second Respondent

SARI ROSALIND ULLRICH
Third Respondent

FLICK J:

FLICK J

DATE:

25 MARCH 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 1 March 2010 reasons for judgment in this proceeding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FCA 286
Decision Date

CaseChat Overview and Summary

Alpine Beef Pty Ltd (formerly known as Ceetex Pty Ltd) commenced proceedings against Trycill Pty Ltd and others, seeking to enforce a contract for the purchase of the China Grove 11, a vessel used for processing beef. The dispute centered on the identity of the proper party to the contract and whether the relevant limitation periods had expired. Following the dismissal of the proceedings, the respondents sought an order for indemnity costs from the outset of the proceeding, or alternatively, from the date of their offer of compromise.

The court considered the wide discretion conferred by section 43 of the Federal Court of Australia Act 1976 (Cth) to award costs, including indemnity costs. However, the court found that the conduct of the applicant, while perhaps inexplicable, did not warrant an order for indemnity costs from the outset. The court also considered the Federal Court Rules, particularly the offer of compromise made on 5 August 2009, which was not in full compliance with the rules but remained relevant to the exercise of the court's discretion.

The court held that the reasons for the applicant's lack of success, together with the offer of compromise made on 5 August 2009, warranted an order for indemnity costs from that date. The court found that it was imprudent and unreasonable for the applicant not to have accepted the offer of compromise, which represented a genuine assessment of the risks involved in the litigation.

The court made an order varying the previous costs order such that the applicant was to pay the respondents' costs, with costs incurred from 5 August 2009 to be paid on an indemnity basis.

Orders