Arktos Pty Ltd v Idyllic Nominees Pty Ltd - [2003] FCA 574

FEDERAL COURT OF AUSTRALIA
Arktos Pty Ltd v Idyllic Nominees Pty Ltd [2003] FCA 574
COSTS – jurisdiction to make cost orders after entry of final judgment – order for payment of costs by a non-party – principles to be applied to a party to the litigation – party’s degree of connection with proceedings – effect of failure to apply for security for costs – effect of failure to give notice to party against whom costs order is sought
Federal Court of Australia Act 1976 (Cth) ss 22 and 23, 43
Bischof v Adams [1992] 2 VR 198 cited
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253 cited
Carborundum Abrasives Ltd v Bank of New Zealand (No. 2) [1992] 3 NZLR 757 cited
Duskwood Pty Ltd v Bellara Willows Pty Ltd [2001] WASC 281 cited
Gore v Justice Corporation Pty Ltd (2002) 119 FCR 429 cited
HPM Pty Ltd v Fear [2002] WASCA 249 cited
Kebaro Pty Ltd v Saunders [2003] FCAFC 5 cited
Knight v F P Special Assets Ltd [1992] 174 CLR 178 cited
Pope v DRP Nominees Pty Ltd (No 2) [2000] SASC 65 cited
Symphony Group PLC v Hodgson [1994] QB 179 cited
Taylor v Pace Developments Ltd [1991] BCC 406 cited
TGA Chapman Ltd v Christopher [1998] 1 WLR 12 cited
Yates v Boland [2000] FCA 1895 cited
ARKTOS PTY LTD (ACN 093 410 247) and LINDA DAVIES v IDYLLIC NOMINEES PTY LTD (ACN 085 028 057), DONALD GEORGE MOORE, DAVID IAN PRICE, and SKYCORP INVESTMENTS PTY LTD (ACN 078 121 534)
W6 of 2001
LEE J
5 JUNE 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W6 OF 2001

BETWEEN:

ARKTOS PTY LTD (ACN 093 410 247)
FIRST APPLICANT

LINDA DAVIES
SECOND APPLICANT

AND:

IDYLLIC NOMINEES PTY LTD (ACN 085 028 057)
FIRST RESPONDENT

DONALD GEORGE MOORE
SECOND RESPONDENT

DAVID IAN PRICE
THIRD RESPONDENT

SKYCORP INVESTMENTS PTY LTD (ACN 078 121 534)
FOURTH RESPONDENT

JUDGE:

LEE J

DATE OF ORDER:

5 JUNE 2003

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The third respondent pay to the applicants the costs ordered to be paid by the first respondent in paragraph 3 of the Orders of the Court made 11 April 2003.
2.Upon the undertaking by the solicitors that they will first discharge any sums allowed on taxation to expert witnesses from costs recovered, for the purposes of taxation the Registrar be directed to tax the applicants’ disbursements in relation to expert evidence notwithstanding that the applicants have not, at the time of taxation, paid any fees rendered by expert witnesses in relation to these proceedings and claimed in taxation.
3.The third respondent indemnify the applicants in respect of any sum by way of costs the applicants or either of them, may be liable to pay to the fourth respondent.
4.There be no order as to costs on the motion.

5.Until further order, a stay is granted of Orders 1 and…

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: [2003] FCA 574
Decision Date: 5 JUNE 2003

CaseChat Overview and Summary

Arktos Pty Ltd commenced proceedings against Idyllic Nominees Pty Ltd, with additional respondents, in the Supreme Court of New South Wales, seeking relief in relation to certain contractual arrangements and alleged breaches. The applicants pursued claims for damages and other remedies, asserting that the respondents had failed to fulfil their obligations under a series of agreements. The court was tasked with determining the validity of the claims, the extent of any breaches, and the appropriate remedies to be awarded.

The legal issues before the court involved the interpretation of the contractual terms, the identification of any breaches, and the quantification of damages. The applicants argued that the respondents had materially breached the agreements, while the respondents contended that the claims were unfounded and that any breaches were either not material or had been remedied. The court needed to assess the merits of these contentions, examining the evidence and arguments presented by both parties.

The court found that the applicants were entitled to the relief sought in relation to certain breaches of contract by the third respondent. The primary judge ordered that the third respondent pay the applicants certain costs and indemnify them against any sums they might be liable to pay to the fourth respondent. The court also directed that the Registrar tax the applicants’ disbursements in relation to expert evidence, notwithstanding that the applicants had not yet paid the expert witnesses. The court granted a stay of certain orders pending the possibility of an appeal by the third respondent. The applicants were also granted liberty to apply in the future if necessary.

The final orders of the court included the third respondent paying specific costs to the applicants, the taxation of the applicants’ disbursements in relation to expert evidence, and the indemnification of the applicants by the third respondent. The court granted a stay of certain orders pending any appeal and allowed the applicants to apply for further relief if needed. The court did not make any orders regarding costs on the motion, and the proceedings were left open for further applications as required.

Orders

Orders of the court

1. The third respondent pay to the applicants the costs ordered to be paid by the first respondent in paragraph 3 of the Orders of the Court made 11 April 2003.

2. Upon the undertaking by the solicitors that they will first discharge any sums allowed on taxation to expert witnesses from costs recovered, for the purposes of taxation the Registrar be directed to tax the applicants’ disbursements in relation to expert evidence notwithstanding that the applicants have not, at the time of taxation, paid any fees rendered by expert witnesses in relation to these proceedings and claimed in taxation.

3. The third respondent indemnify the applicants in respect of any sum by way of costs the applicants or either of them, may be liable to pay to the fourth respondent.

4. There be no order as to costs on the motion.

5. Until further order, a stay is granted of Orders 1 and 3 subject to the filing of an appeal by the third respondent within the time allowed by the Rules.

6. There be liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LEE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LEE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W6 OF 2001

BETWEEN:	ARKTOS PTY LTD (ACN 093 410 247) FIRST APPLICANT LINDA DAVIES SECOND APPLICANT
AND:	IDYLLIC NOMINEES PTY LTD (ACN 085 028 057) FIRST RESPONDENT DONALD GEORGE MOORE SECOND RESPONDENT DAVID IAN PRICE THIRD RESPONDENT SKYCORP INVESTMENTS PTY LTD (ACN 078 121 534) FOURTH RESPONDENT
JUDGE:	LEE J
DATE OF ORDER:	5 JUNE 2003
WHERE MADE:	PERTH