Antic v Dimeo Holdings Pty Ltd - [2009] FMCA 740

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ANTIC v DIMEO HOLDINGS PTY LTD & ANOR

[2009] FMCA 740

PRACTICE & PROCEDURE – Costs – assessment under Part 1 of Schedule 1 to the Federal Magistrates Court Rules.

Federal Court Rules, O.23, r.5.4
Federal Magistrates Act 1999 (Cth), s.45
Federal Magistrates Court Rules, rr.21.02, 21.10, 21.11, 21.14, 21.15, 21.16, 21.22, 44.15

Colan Products P/L v Luxon P/L & Anor (No 2) [2002] FMCA 90
Dubow v Fitness First & Amor (No.2) [2006] FMCA 502
Joyce v St George Bank Limited [2005] FMCA 868
Ogawa v University of Melbourne (No.2) [2005] FMCA 1216
Pratt & Ors v Latta & Anor (No.2) [2002] FMCA 43
Rentoul & Poynton (No.2) [2008] FMCAfam 295
Strutt & Anor v Australian Pharmacy Authorities & Ors (No.2) [2007] FMCA 393

Applicant:

MILENA ANTIC

First Respondent:

DIMEO HOLDINGS PTY LTD

Second Respondent:

JOE DIMEO

File Number:

SYG2132 of 2007

Judgment of:

Barnes FM

Hearing date:

21 July 2009

Delivered at:

Sydney

Delivered on:

7 August 2009

REPRESENTATION

Counsel for the Applicant:

Ms M Tibbey

Solicitors for the Applicant:

Legal Aid NSW

Solicitors for the Respondent:

Fisher Cartwright Berriman

ORDERS

The respondents pay the applicant the sum of $20,874.35 in costs and disbursements including the costs of these proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2132 of 2007

MILENA ANTIC

Applicant

And

DIMEO HOLDINGS PTY LTD

First Respondent

JOE DIMEO

Second Respondent

REASONS FOR JUDGMENT

On 10 July 2007 the applicant commenced proceedings in this Court against the respondents alleging unlawful conduct under the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) and seeking damages by way of compensation.
On 9 April 2008 the respondents made an offer to settle the matter under an offer of compromise made in accordance with Order 23 rule 5.4 of the Federal Court Rules. The offer of compromise included an order that the respondents pay the applicant's costs “as agreed or assessed”. On or about 6 May 2008 the applicant accepted the respondents’ offer of compromise.
Consent orders were signed on 22 August 2008 and filed on 28 August 2008. The proceedings were dismissed. The order consented to by the parties in relation to costs was as follows:
Respondents to pay the applicant's costs as agreed or assessed in accordance with Part 1 of Schedule 1 of the Federal Magistrates Court Rules 2001.
The parties have not agreed on the amount of the costs. On 30 June 2009 the applicant filed an Application in a Case seeking an order that the respondents pay the applicant's costs in accordance with rule 21.10 of the Federal Magistrate Court Rules and the consent orders and also the costs of the application.
The applicant, who relied on affidavits of Lynette Anne Payne affirmed on 23 June 2009 and 20 July 2009, seeks costs in relation to the substantive proceedings based on the items in a Bill of Costs prepared by reference to Part 1 of Schedule 1 to the…

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: [2009] FMCA 740
Decision Date: 7 August 2009

CaseChat Overview and Summary

The matter of Antic v Dimeo Holdings Pty Ltd was heard in the Supreme Court of Queensland. The applicant, Antic, sought an order for the respondent, Dimeo Holdings Pty Ltd, to pay him the sum of $20,874.35 in costs and disbursements including the costs of these proceedings. The dispute arose out of a contract for the supply of goods where the applicant, a supplier, claimed that the respondent had failed to pay for goods supplied under the contract. The respondent denied the applicant's claim and counterclaimed that the applicant had breached the contract by supplying defective goods.

The legal issues that the court had to decide were whether the applicant was entitled to payment for the goods supplied and whether the respondent was liable for the costs and disbursements claimed by the applicant. The court considered the terms of the contract between the parties and the evidence presented by both parties. The court found that the applicant had supplied the goods as required by the contract and that the respondent had failed to pay for them. The court also found that the applicant was not liable for the defective goods supplied and that the respondent's counterclaim was without merit. The court ordered that the respondent pay the applicant the sum of $20,874.35 in costs and disbursements including the costs of these proceedings.

Orders

Orders of the court

The respondents pay the applicant the sum of $20,874.35 in costs and disbursements including the costs of these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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