Canberra Residential Developments Pty Limited v Brendas - [2010] FCA 519

FEDERAL COURT OF AUSTRALIA
Canberra Residential Developments Pty Limited v Brendas [2010] FCA 519

Citation: Canberra Residential Developments Pty Limited v Brendas [2010] FCA 519

Parties: CANBERRA RESIDENTIAL DEVELOPMENTS PTY LIMITED (ACN 098 326 375) v SPIROS BRENDAS, BEVERLEY ROSE BRENDAS, KENOSS PTY LIMITED (ACN 008 544 232) and CANBERRA LAND DEVELOPMENTS PTY LTD

File number: ACD 21 of 2006

Judge: BENNETT J

Date of judgment: 19 May 2010

Cases cited: Canberra Residential Developments Pty Limited v Brendas (No 5) [2009] FCA 34 referred to
Canberra Residential Developments Pty Limited v Brendas [2010] FCA 90 considered

Date of hearing: 19 May 2010

Place: Sydney (heard in part via video link to Canberra)

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 11

Counsel for the Applicant: Mr I M Neil SC

Solicitor for the Applicant: Goodman Law

Counsel for the First, Second and Third Respondents: Mr D Mossop

Solicitor for the First, Second and Third Respondents: Gillespie-Jones & Co

Counsel for the Fourth Respondent: The Fourth Respondent did not appear.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 21 of 2006

BETWEEN:
CANBERRA RESIDENTIAL DEVELOPMENTS PTY LIMITED (ACN 098 326 375)
Applicant

AND:
SPIROS BRENDAS
First Respondent

BEVERLEY ROSE BRENDAS
Second Respondent

KENOSS PTY LIMITED (ACN 008 544 232)
Third Respondent

CANBERRA LAND DEVELOPMENTS PTY LTD
Fourth Respondent

JUDGE:

BENNETT J

DATE OF ORDER:

19 MAY 2010

WHERE MADE:

SYDNEY (heard in part via video link to Canberra)

THE COURT ORDERS THAT:
1.The applicant’s notice of motion filed 18 May 2010 be dismissed.
2.The applicant pay the respondents’ costs of the motion.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 21 of 2006

BETWEEN:
CANBERRA RESIDENTIAL DEVELOPMENTS PTY LIMITED (ACN 098 326 375)
Applicant

AND:
SPIROS BRENDAS
First Respondent

BEVERLEY ROSE BRENDAS
Second Respondent

KENOSS PTY LIMITED (ACN 008 544 232)
Third Respondent

CANBERRA LAND DEVELOPMENTS PTY LTD
Fourth Respondent

JUDGE:

BENNETT J

DATE:

19 MAY 2010

PLACE:

SYDNEY (heard in part via video link to Canberra)

REASONS FOR JUDGMENT

The applicant moves on a notice of motion seeking an order that the taxation of the first, second and third respondents’ costs of a hearing that took place before Graham J be stayed. His Honour had delivered judgment on 30 January 2009 (Canberra Residential Developments Pty Limited v Brendas (No 5) [2009] FCA 34). The stay is sought pending the final orders of the Full Court in the hearing of the appeal from Graham J’s judgment. That hearing took place last week and judgment has been reserved. (The present motion does not concern the fourth respondent who has not filed a bill of costs and in these reasons, a reference to the respondents should be read as referring to the first, second and third…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FCA 519
Decision Date

CaseChat Overview and Summary

In the case of Canberra Residential Developments Pty Limited v Brendas, the Federal Court of Australia dealt with a motion by the applicant, Canberra Residential Developments Pty Limited, seeking to stay the taxation of the respondents' costs in relation to a prior hearing. The respondents include Spiros Brendas, Beverley Rose Brendas, Kenoss Pty Limited, and Canberra Land Developments Pty Ltd. The taxation of costs was related to a judgment delivered by Graham J on 30 January 2009, which the applicant sought to appeal. The applicant's motion was filed on 18 May 2010 and was heard on the same day, with Bennett J presiding.

The primary legal issue before the court was whether the taxation of the respondents' costs should be stayed pending the outcome of the appeal to the Full Court, which had been heard the previous week with judgment reserved. This was not the first time the applicant had sought a stay; a similar application was made to Stone J earlier in the year and was refused. The applicant argued that the Full Court's decision was imminent and that continuing with the taxation would be disruptive. The respondents, on the other hand, contended that they should not be kept out of the benefit of the costs order made in their favour until the appeal was finally resolved, especially given the length of time since the costs orders were made.

The court considered the history of the taxation proceedings, noting that an interim certificate of taxation had already been issued in respect of some part of the costs. The applicant had filed a notice of objection, initially not objecting to some part of the estimate, but later objecting to the totality of the bill. The court observed that the appeal to the Full Court was not imminent when Stone J made her decision, but the situation had changed. Despite this, the court found that the fact that 11 days remained in the taxation, partly due to the objections, was not sufficient to deprive the respondents of the opportunity to have the taxation completed as soon as possible. The court was not persuaded to grant the stay and ordered the applicant to pay the respondents' costs of the motion.

Orders