Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Bookarelli Pty Ltd v Katanga Developments Pty Ltd (No 2) [2017] NSWCA 94 Hearing dates: On the papers Decision date: 11 May 2017 Before: Macfarlan JA, Payne JA, Sackville AJA Decision: In lieu of Order 2 made by this Court on 5 April 2017, order the applicant to pay the respondent’s costs of and incidental to the proceedings in this Court on an indemnity basis.
Catchwords: APPEAL – costs – applicant’s case not reasonably arguable – order for indemnity costs warranted Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(1)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2, 42.5(b), 51.45(1A), Pt 59
District Court Act 1973 (NSW), s 127(2)(b), (c)
Legal Profession Act 2004 (NSW), s 384(1)
Supreme Court Act 1970 (NSW), s 69Cases Cited: Andrews v Barnes (1887) 39 Ch D 133
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; 81 ALR 397
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
NMFM Property Pty Ltd v Citibank Ltd (No 2) (2001) 109 FCR 77; [2001] FCA 480
Preston v Preston [1981] 3 WLR 619; [1982] 1 All ER 41
Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 225Category: Costs Parties: Bookarelli Pty Ltd (Applicant)
Katanga Developments Pty Ltd (First Respondent)
His Honour Judge Hatzistergos (Second Respondent)Representation: Counsel:
Solicitors:
N/A
Thomas Booler & Co Lawyers (Applicant)
Cordato Partners (Respondents)
File Number(s): 2016/321143 Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Date of Decision:
- 29 July 2016
- Before:
- Hatzistergos DCJ
- File Number(s):
- 2015/274083
Judgment
-
THE COURT: The Court gave judgment in this appeal on 5 April 2017. [1] The following orders were made:
“1. The Amended Summons filed on 8 December 2016 be dismissed.
2. The applicant pay the respondent’s costs of the proceedings in this Court.
3. Subject to any application as to costs that may be made by the respondent, the applicant file and serve written submissions within 14 days as to whether it should be ordered to pay the costs of the proceedings in this Court on an indemnity basis.”
1. Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69 (Principal Judgment).
-
The judgment gave the following reasons for making Order 3: [2]
“[54] … the Amended Summons is, in effect, Bookarelli’s third attempt to challenge the Costs Assessor’s determination. One of the consequences of the High Court’s decision in Kirk [v Industrial Court of New South Wales[3] ] is that even if a privative clause purports to preclude an appeal or application for review of a decision of a tribunal or inferior court, the…
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- Case
- [2017] NSWCA 94
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the applicant's appeal had any reasonable prospect of success. Specifically, the court considered whether the grounds of appeal were so lacking in merit that they were not reasonably arguable, and consequently, whether an order for indemnity costs against the applicant was warranted.
The Court of Appeal found that the applicant's case was not reasonably arguable. The court's reasoning, though not detailed in the provided text, led to the conclusion that the appeal lacked substance. Accordingly, the court determined that the applicant should pay the respondent's costs of and incidental to the proceedings in the Court of Appeal on an indemnity basis. The court made an order in lieu of its previous order of 5 April 2017 to reflect this decision.
Orders
Orders of the court
In lieu of Order 2 made by this Court on 5 April 2017, order the applicant to pay the respondent’s costs of and incidental to the proceedings in this Court on an indemnity basis.
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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