Aussie Hoist Property Pty Ltd v Mulqueen (No 2)

FEDERAL COURT OF AUSTRALIA

Aussie Hoist Property Pty Ltd v Mulqueen (No 2) [2018] FCA 1600

File number:

NSD 408 of 2018

Judge:

GRIFFITHS J

Date of judgment:

24 October 2018

Catchwords:

COSTS – application by the defendant for a lump sum costs order – whether lump sum costs are appropriate – whether the costs claimed by the parties were fairly and reasonably incurred – order for lump sum costs for reduced amounts made and after offsetting costs payable to the plaintiff

Legislation:

Federal Court of Australia Act 1976 (Cth), s 43

Federal Court Rules 2011 (Cth), r 40.02

Cases cited:

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

Innes v AAL Aviation Limited (No 2) [2018] FCAFC 130

Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; 253 FCR 403

Date of hearing:

Determined on the papers

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

37

Counsel for the Plaintiff:

Mr M Bennett

Solicitor for the Plaintiff:

Shaw McDonald Lawyers

Counsel for the Defendant:

Mr M J Heath

Solicitor for the Defendant:

O’Loughlins Lawyers

ORDERS

NSD 408 of 2018

BETWEEN:

AUSSIE HOIST PROPERTY PTY LTD (ACN 619 644 889) ATF THE AUSSIE HOIST (MLB) PROPERTY UNIT TRUST

Plaintiff

AND:

KELLY JANE MULQUEEN ATF THE MULQUEEN FAMILY TRUST

Defendant

JUDGE:	GRIFFITHS J
DATE OF ORDER:	24 OCTOBER 2018

THE COURT ORDERS THAT:

1.The plaintiff pay the defendant costs in the lump sum of $16,014.80 (excl GST).

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

REASONS FOR JUDGMENT

Griffiths J:

Introduction

1. This judgment concerns an application by the defendant for the Court to fix lump sum costs following the dismissal of the plaintiff’s application to set aside a statutory demand dated 1 March 2018 (see Aussie Hoist Property Pty Ltd v Mulqueen [2018] FCA 1493) (Aussie Hoist No 1).  The defendant made the application for lump sum costs orally at the time the Court handed down its judgment in Aussie Hoist No 1.  The Court ordered the parties to file and serve brief submissions on the appropriateness of making a lump sum costs order.  The parties consented to the application being determined on the papers without a hearing.

2. Both parties have successfully obtained a costs order in these proceedings.  

   (a)On 13 April 2018, the defendant filed an interlocutory application which sought an injunction to prevent Shaw McDonald Lawyers from acting for the plaintiff and an order that that Shaw McDonald Lawyers provide access to its files relating to the plaintiff (the Representation Issue).  On 24 July 2018, that interlocutory application was dismissed by consent and the Court ordered by consent that that the defendant pay the plaintiff’s costs of opposing the defendant’s interlocutory application.

   (b)On 4 October 2018, the Court handed down its judgment in Aussie Hoist No 1 which dismissed the plaintiff’s…