Birdseye v Sheahan

[2005] FCA 305

FEDERAL COURT OF AUSTRALIA

Birdseye v Sheahan [2005] FCA 305

NICHOLAS GUY BIRDSEYE v JOHN SHEAHAN and THE OFFICIAL RECEIVER

SAD 7005 of 2003

LANDER J
7 JULY 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 7005 OF 2003

BETWEEN:

NICHOLAS GUY BIRDSEYE
APPLICANT

AND:

JOHN SHEAHAN
FIRST RESPONDENT

THE OFFICIAL RECEIVER
SECOND RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

7 JULY 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The applicant pay to the respondent John Sheahan his costs of the trial.

2.        There be no order as to costs as between the applicant and the Official Receiver.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 7005 OF 2003

BETWEEN:

NICHOLAS GUY BIRDSEYE
APPLICANT

AND:

JOHN SHEAHAN
FIRST RESPONDENT

THE OFFICIAL RECEIVER
SECOND RESPONDENT

JUDGE:	LANDER J
DATE:	7 JULY 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application by the first respondent seeking an order for costs in relation to the proceeding before me in which I delivered judgment on 14 May 2004.  The first respondent was successful.  At that time I reserved the question of costs because the first respondent wished to obtain instructions as to whether the first respondent sought costs on indemnity basis.  In the meantime, the applicant appealed to the Full Court of the Federal Court of Australia.  That appeal has been dismissed.  The applicant has been ordered to pay the first respondent’s costs of that appeal.

2. The first respondent has made application this morning for the costs before me.  There is no appearance by the applicant.  The first respondent has provided me with a letter written by his solicitors Gretsas Chrzaszcz, dated 20 April 2005, to the applicant’s solicitors.  That letter enclosed consent minutes of order for signing by the applicant’s solicitors, if their instructions were to agree to an order for costs against the applicant on a party and party basis.  That letter was not replied to until 29 June 2005.  I have been handed a copy of that letter in which the applicant’s solicitor advised that their client did not object to the first respondent having an order for costs in respect of the costs of the trial before me. 

3. It would appear that the applicant’s solicitor overlooked the consent minutes of order which were sent to them, because they sought a further consent minutes of order in the same terms as the previous consent minutes of order.  I am advised by the first respondent’s solicitor that he yesterday confirmed with the applicant’s solicitors that they had no objection to the order.  In those circumstances, I make an order that the applicant pay the first respondent’s costs of and incidental to the proceedings before me.

4. I make orders in the terms of the minutes of order this day handed to me.  To avoid any doubt, the order for costs is in favour of the first respondent.  There will be no order as to costs between the applicant and the second respondent.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:             8 July 2005

Counsel for the Applicant:	The Applicant did not appear
Counsel for the First and Second Respondents:	Mr G Gretsas
Solicitor for the First and Second Respondents:	Gretsas Chrzaszcz
Date of Hearing:	7 July 2005
Date of Judgment:	7 July 2005