Arya v Kone Elevators Pty Ltd and Anor (No.2) - [2020] FCCA 3028

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARYA v KONE ELEVATORS PTY LTD & ANOR (No.2)

[2020] FCCA 3028

Catchwords:
COSTS – Respondents seeks costs on party/party basis and on an indemnity basis – applicant opposes orders as to costs – multiple Calderbank offer made to the applicant – Calderbank offers refused – unreasonable counter-offers made by applicant – repudiation of Calderbank offers unreasonable – costs awarded in part on a party/party basis and in part on an indemnity basis – respondent to provide schedule of costs of how costs were calculated.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), s.46PSA.

Fair Work Act 2009 (Cth), s.570.

Federal Circuit Court of Australia Act 1999 (Cth), s.79.

Federal Circuit Court Rules 2001 (Cth), r. 21.02.

Cases cited:

Abdi v Equitable Financial Solutions Pty Ltd & Anor [2020] FCCA 252

Arya v KONE Elevators Pty Ltd & Anor [2020] FCCA 2693

Bashour v Australia and New Zealand Banking Group Limited [2017] FCA 183

Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119

Calderbank v Calderbank [1975] 3 All ER 333

Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2)

(2005) 13 VR 43

Idoport Pty Ltd v the National Australia Bank Ltd [2007] NSWSC 23

Thompson & Finch & Ors [2020] FamCAFC 230

Applicant:

SUDHA ARYA

First Respondent:

KONE ELEVATORS PTY LTD

Second Respondent:

KATHLYN DANG

File Number:

MLG 3897 of 2018

Judgment of:

Judge McNab

Hearing date:

On the Papers

Date of Last Submission:

26 October 2020

Delivered at:

Melbourne

Delivered on:

11 November 2020

REPRESENTATION

Counsel for the Applicant:

Ms S Aufgang

Counsel for the Respondents:

J D'Abaco

Solicitors for the Respondents:

Bartier Perry Pty Ltd

ORDERS

The Applicant pay the Respondents’ costs up to and including 31 May 2019 on a party/party basis.
Thereafter, the Applicant pay the Respondents’ costs, including the costs of the Respondent’s application for costs, on an indemnity basis.
The Respondents prepare, file and serve a schedule of costs setting out the method by which the Respondents’ costs were calculated within 14 days of the date of these orders.
Pursuant to Rule 21.02 of the Federal Circuit Court Rules 2001 (Cth), the proceeding be referred to a Registrar or Senior Registrar of the Federal Circuit Court of Australia for the determination of fixing a lump sum of costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3897 of 2018

SUDHA ARYA

Applicant

And

KONE ELEVATORS PTY LTD

First Respondent

KATHLYN DANG

Second Respondent

REASONS FOR JUDGMENT

On 29 September 2020 the Court entered judgment under the media neutral citation ‘Arya v KONE Elevators Pty Ltd & Anor [2020] FCCA 2693’ and made orders in favour of the Respondents by dismissing the Applicant’s application filed on 20 December 2018. In doing so, the Court invited parties to make an application for costs as follows:
“(2)By 4.00pm on 14 October 2020 the Respondents file and serve submissions, limited to 4 A4 pages, and a supporting affidavit in support of an application for…

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: [2020] FCCA 3028
Decision Date: 11 November 2020

CaseChat Overview and Summary

In *Arya v Kone Elevators Pty Ltd and Anor (No.2)*, the applicant sought to oppose orders for costs made in favour of the respondents. The dispute concerned the respondents' entitlement to costs on both a party/party and an indemnity basis, following the applicant's refusal of multiple Calderbank offers and the making of unreasonable counter-offers.

The central legal issue before Judge McNab was whether the respondents were entitled to recover their costs on an indemnity basis, in addition to the standard party/party basis, given the circumstances surrounding the Calderbank offers. This required the court to assess the reasonableness of the applicant's conduct in refusing the offers and making counter-offers.

Judge McNab reasoned that the applicant's repudiation of the Calderbank offers was unreasonable, and that the counter-offers made by the applicant were also unreasonable. Consequently, the court determined that the respondents were entitled to costs on an indemnity basis from 1 June 2019 onwards. The applicant was ordered to pay the respondents' costs up to 31 May 2019 on a party/party basis, and thereafter on an indemnity basis, including the costs of the application for costs. The respondents were directed to provide a schedule of costs within 14 days, and the matter was referred to a Registrar for the determination of a lump sum of costs.

Orders

Orders of the court

ORDERS

1. The Applicant pay the Respondents’ costs up to and including 31 May 2019 on a party/party basis.

2. Thereafter, the Applicant pay the Respondents’ costs, including the costs of the Respondent’s application for costs, on an indemnity basis.

3. The Respondents prepare, file and serve a schedule of costs setting out the method by which the Respondents’ costs were calculated within 14 days of the date of these orders.

4. Pursuant to Rule 21.02 of the Federal Circuit Court Rules 2001 (Cth), the proceeding be referred to a Registrar or Senior Registrar of the Federal Circuit Court of Australia for the determination of fixing a lump sum of costs.

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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