Bendigo and Adelaide Bank Limited v Benedetta Russo and Sid Russo; Bendigo and Adelaide Bank Limited v Sid Russo

Bendigo and Adelaide Bank Limited brought claims against Benedetta Russo and Sid Russo in the Federal Circuit Court. The bank sought to recover money owed under a loan agreement and for costs under the agreement. The defendants were successful in setting aside a default judgment that had been entered against them, and they sought costs under the Uniform Civil Procedure Rules. The bank opposed the costs application on the basis that the defendants were not the prevailing parties. The defendants submitted that some other order should be made as to costs. The court was required to determine whether the defendants, having been successful in setting aside a default judgment, were the prevailing parties for the purposes of Rule 42.30 of the Uniform Civil Procedure Rules. The court was also required to decide whether, if the defendants were not the prevailing parties, some other order should be made as to costs. The court held that the defendants were not the prevailing parties for the purposes of Rule 42.30 because the default judgment was not a final judgment and had no operative effect. The court held that the defendants had not demonstrated any special circumstances that warranted some other order being made as to costs. The court ordered that no order as to costs be made.

The court's decision highlights the importance of understanding the nature of the proceedings and the effect of any orders made in determining who is the prevailing party for the purposes of the costs rules. The court's decision also highlights the need for parties to carefully consider their costs applications, particularly where they are seeking costs following the setting aside of a default judgment. The decision provides useful guidance for parties and lawyers in similar circumstances.