Bartlem Pty Ltd v CMMC Pty Ltd (Receiver and Manager Appointed)

Case [2001] FCA 1352

FEDERAL COURT OF AUSTRALIA

Bartlem Pty Ltd v CMMC Pty Ltd (Receiver & Manager Appointed)
[2001] FCA 1352

Calderbank v Calderbank [1975] 3 WLR 586
Magenta Nominees Pty Ltd v Richard Ellis (Western Australia) Pty Ltd [1994] FCA 302
Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721
Cummings v Lewis (1993) 41 FCR 559

BARTLEM PTY LTD (ACN 060 394 158) v CMMC PTY LTD (RECEIVER & MANAGER APPOINTED) (ACN 010 341 625), COX INDUSTRIES (AUSTRALIA) PTY LTD (FORMERLY RURAL PACIFIC MARKETING PTY LTD) (ACN 050 991 038), COX MOWERS PTY LTD (ACN 081 272 371) AND FINDLAY WILLIAM ANDREWS
QG 133 OF 1996

COOPER J
BRISBANE
19 SEPTEMBER 2001


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 133 OF 1996

BETWEEN:

BARTLEM PTY LTD (ACN 060 394 158)
APPLICANT (CROSS RESPONDENT)

AND:

CMMC PTY LTD (RECEIVER & MANAGER APPOINTED) (ACN 010 341 625)
FIRST RESPONDENT

PHILIP ARTHUR HENNESSEY
SECOND RESPONDENT

COX INDUSTRIES (AUSTRALIA) PTY LTD (FORMERLY RURAL PACIFIC MARKETING PTY LTD) (ACN 050 991 038)
THIRD RESPONDENT (FIRST CROSS CLAIMANT)

COX MOWERS PTY LTD (ACN 081 272 371)
FOURTH RESPONDENT (SECOND CROSS CLAIMANT)

FINDLAY WILLIAM ANDREWS
FIFTH RESPONDENT (THIRD CROSS CLAIMANT)

JUDGE:

COOPER J

DATE OF ORDER:

19 SEPTEMBER 2001

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application to vary the order for costs made on the cross-claim on 30 August 2001 is dismissed.

2.The applicants on the notice of motion filed 12 September 2001 pay the respondent to the notice of motion its costs of and incidental to the notice of motion to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 133 OF 1996

BETWEEN:

BARTLEM PTY LTD (ACN 060 394 158)
APPLICANT (CROSS RESPONDENT)

AND:

CMMC PTY LTD (RECEIVER & MANAGER APPOINTED) (ACN 010 341 625)
FIRST RESPONDENT

PHILIP ARTHUR HENNESSEY
SECOND RESPONDENT

COX INDUSTRIES (AUSTRALIA) PTY LTD (FORMERLY RURAL PACIFIC MARKETING PTY LTD) (ACN 050 991 038)
THIRD RESPONDENT (FIRST CROSS CLAIMANT)

COX MOWERS PTY LTD (ACN 081 272 371)
FOURTH RESPONDENT (SECOND CROSS CLAIMANT)

FINDLAY WILLIAM ANDREWS
FIFTH RESPONDENT (THIRD CROSS CLAIMANT)

JUDGE:

COOPER J

DATE:

19 SEPTEMBER 2001

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. On 30 August 2001 I delivered judgment in this matter dismissing both the claim and cross-claim with the costs following the disposition of each.

  2. The cross-claimants seek an order varying my order that the cross-claimants pay the cross-respondent’s costs of and incidental to the cross-claim, including reserved costs, to be taxed.  The variation is sought on the basis of a settlement offer made in a letter from the cross-claimants’ solicitors to the cross-respondent’s solicitors dated 21 August 2000.

  3. The settlement offer was not made with respect to the cross-claim alone.  It involved both the claim for infringement and the cross-claim for revocation of the patents in suit.  The offer had four elements :

    1.the applicant discontinue the claim for infringement;

    2.the applicant pay…

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AGLC
Bartlem Pty Ltd v CMMC Pty Ltd (Receiver and Manager Appointed) [2001] FCA 1352
Case
[2001] FCA 1352
Decision Date

CaseChat Overview and Summary

The case before the court involved Bartlem Pty Ltd as the applicant and CMMC Pty Ltd with a Receiver and Manager appointed, as the respondent. The applicant sought to vary an earlier order for costs related to a cross-claim. This application was made after a cross-claim had been filed and an initial costs order was issued. The applicant filed a further notice of motion seeking variation of this costs order.

The legal issues before the court centred on the applicant's entitlement to have the initial costs order varied. The respondent opposed the application, arguing that the applicant had not demonstrated sufficient grounds for the variation of the initial order. The court had to consider whether the applicant had provided adequate justification for altering the costs order and whether the respondent would be prejudiced by such a variation.

In assessing the application, the court examined the reasons provided by the applicant for seeking the variation of the costs order. The court found that the applicant had not adequately demonstrated the necessity for a variation of the initial order. The court also considered the respondent's opposition and the potential prejudice that could result from allowing the variation. Ultimately, the court concluded that the applicant had not met the required standard to justify a variation of the initial costs order. Consequently, the application to vary the costs order was dismissed. Additionally, the court ordered that the applicants on the notice of motion filed on 12 September 2001 pay the respondent's costs associated with that notice of motion, to be taxed if not agreed.

Orders

Orders of the court

1. The application to vary the order for costs made on the cross-claim on 30 August 2001 is dismissed.

2. The applicants on the notice of motion filed 12 September 2001 pay the respondent to the notice of motion its costs of and incidental to the notice of motion to be taxed if not agreed.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

COOPER J

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Ratio Decidendi

Legal Principle Established

Established by: COOPER J

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