Aristocrat Technologies Australia Pty Ltd v Allam

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FEDERAL COURT OF AUSTRALIA

Aristocrat Technologies Australia Pty Ltd v Allam [2017] FCA 812

File number: NSD 314 of 2016
Judge(s): PERRAM J
Date of judgment: 21 July 2017
Catchwords:

COSTS – where costs orders made by High Court in favour of First and Sixth Respondents against Applicant – where certificate of taxation issued – where solicitors for Respondents assert lien over judgment debt – whether principles of set-off apply to prevent enforcement of costs orders where other costs orders in Applicant’s favour exceed amounts to which Respondents are entitled in certificate of taxation

PRACTICE AND PROCEDURE – application for enforcement of costs orders made by High Court in favour of First and Sixth Respondents against Applicant – writ for levy of property – garnishee order – application for injunction prohibiting Respondents from enforcing costs order – whether injunction should issue in circumstances
Legislation:

Evidence Act 1995 (Cth) s 136

Personal Property Securities Act 2009 (Cth) s 8(1)(c)

High Court Rules 2004 (Cth) r 57.05.4
Cases cited:

Allam v Aristocrat Technologies Australia Pty Ltd [2012] FCAFC 34; (2012) 95 IPR 242

Akki Pty Ltd v Martin Hall Pty Ltd (1994) 35 NSWLR 470 Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3

Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] HCA 21; (2013) 297 ALR 406

Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd(No. 2) [2010] FCA 277

Australian Beverage Distributors v Evans & Tate Premium Wines Pty Ltd [2006] NSWSC 560; (2006) 200 FLR 332

Brookes v Harris [1995] 1 WLR 918

Cade Pty Ltd v Thomson Simmins (No. 2) [2000] SASC 369

Currie v The Law Society [1977] QB 990

Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96

Flinn v Flinn [1999] 3 VR 712

Lahoud v Lahoud [2012] NSWSC 284

Lockley v National Blood Transfusion Service [1992] 1 WLR 492

Miller v Director of Public Prosecutions (No. 2) [2004] NSWCA 249

Puddephatt v Leith (No.2) [1916] 2 Ch 168

Sivritas v Sivritas [2008] VSC 374; (2008) 23 VR 349

State of New South Wales v Hamod [2011] NSWCA 376

Team Dynamik Racing Pty Ltd v Longhurst Racing Pty Ltd [2008] QSC 36

Wentworth v Wentworth (Unreported, Supreme Court of New South Wales, Young J, 12 December 1994)

Worrell v Power (1993) 46 FCR 214
Date of hearing: 8 February 2017
Registry: New South Wales
Division: General Division
National Practice Area: Intellectual Property
Sub-area: Copyright and Industrial Designs
Category: Catchwords
Number of paragraphs: 43
Counsel for the Applicants: Mr J Hennessy SC
Solicitor for the Applicants: Gilbert + Tobin
Counsel for the First and Sixth Respondents: Mr M Green SC
Solicitor for the First and Sixth Respondents: Bruce & Stewart Lawyers

ORDERS

NSD 314 of 2016
BETWEEN:

ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD

First Applicant

ARISTOCRAT INTERNATIONAL PTY LTD

Second Applicant

ARISTOCRAT TECHNOLOGIES INC

Third Applicant
AND:

RIAD ALLAM

First Respondent

GLOBAL GAMING SUPPLIES PTY LTD

Second Respondent

ANTHONY EDWARD ANDREWS (and…

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Details
Case
[2017] FCA 812
Decision Date

CaseChat Overview and Summary

Aristocrat Technologies Australia Pty Ltd sought relief from the Federal Court of Australia in relation to costs orders made in its disfavour by the High Court. The First and Sixth Respondents, who had successfully defended the High Court proceedings, had been awarded costs. They sought to enforce these orders and issued a writ for levy of property and a garnishee order. Aristocrat Technologies opposed these enforcement attempts, arguing that the Respondents could not enforce the orders until a certificate of taxation was issued. The Respondents claimed a lien over the judgment debt, and Aristocrat Technologies sought an injunction preventing enforcement and argued that the principles of set-off applied.

The court considered whether the Respondents could enforce the High Court costs orders before a certificate of taxation was issued and if the principles of set-off applied to prevent enforcement. Aristocrat Technologies argued that the orders in their favour exceeded the amounts to which the Respondents were entitled according to the certificate of taxation. The court found that the principles of set-off could apply in this context, and the enforcement attempts should be stayed until a certificate of taxation was issued. The court also dismissed the Respondents’ applications for a writ for levy of property and a garnishee order and granted an injunction preventing enforcement of the costs orders.

The court ordered that the First and Sixth Respondents, or any other person, be prohibited from taking any further action to enforce the High Court order until a certificate of taxation was issued. The writ for levy of property, garnishee order, and enforcement request were dismissed with costs. The costs of the application filed by Aristocrat Technologies were to be paid by the Respondents, and the Respondents were ordered to pay Aristocrat Technologies’ costs of the summons filed in the High Court.

The court also made specific orders regarding the costs of the proceedings, directing that the costs of the application filed by Aristocrat Technologies on 5 December 2016 be paid by the First and Sixth Respondents, and the costs of the summons filed in the High Court on 5 February 2016 be paid by the Respondents. These orders reflect the court's decision to balance the respective positions of the parties and ensure that the enforcement of costs orders was appropriately managed within the legal framework.

Orders

Orders of the court

2. The First and Sixth Respondents, or any other person, be prohibited from taking any further action to enforce the order of the High Court dated 2 May 2013 in proceeding S169 of 2012, until a certificate of taxation is issued by this Court in relation to the Applicants’ Bill of Costs filed on 5 December 2016.

3. The First and Sixth Respondents’ Application for Writ for Levy of Property filed in the High Court on 17 December 2015, their Notice of Motion for a Garnishee Order dated 21 January 2016 and their Request for Enforcement filed in this Court on 2 December 2016 each be dismissed with costs.

4. The costs of the Application filed by the Applicants in this Court on 5 December 2016 be paid by the First and Sixth Respondents.

5. The Applicants’ costs of, and incidental to, the summons filed in the High Court on 5 February 2016 in proceeding S169 of 2012 be paid by the First and Sixth Respondents.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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