Canberra Residential Developments Pty Limited v Brendas - [2010] FCA 169

FEDERAL COURT OF AUSTRALIA
Canberra Residential Developments Pty Limited v Brendas [2010] FCA 169

Citation: Canberra Residential Developments Pty Limited v Brendas [2010] FCA 169

Parties: CANBERRA RESIDENTIAL DEVELOPMENTS PTY LIMITED v SPIROS BRENDAS, BEVERLEY ROSE BRENDAS, KENOSS PTY LIMITED and CANBERRA LAND DEVELOPMENTS PTY LTD

File number: ACD 21 of 2006

Judge: STONE J

Date of judgment: 4 March 2010

Catchwords: COSTS - apportionment of costs – each party partially successful

Legislation: Federal Court of Australia Act 1976 (Cth) s 43(2)

Cases cited: Canberra Residential Developments Pty Limited v Brendas (No5) [2009] FCA 34; 69 ACSR 435
Canberra Residential Developments Pty Limited v Brendas [2010] FCA 90
DSE (Holdings) Pty Limited v InterTAN Inc [2004] FCA 1251

Date of hearing: 16 February 2010

Place: Sydney (HEARD IN PART VIA VIDEO LINK TO CANBERRA)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 9

Counsel for the Applicant: Mr I Neil SC with Mr G Blank

Solicitor for the Applicant: Goodman Law

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

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

Solicitor for the Fourth Respondent: J S O'Connor Harris & Co

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 21 of 2006

BETWEEN:
CANBERRA RESIDENTIAL DEVELOPMENTS PTY LIMITED
Applicant

AND:
SPIROS BRENDAS
First Respondent

BEVERLEY ROSE BRENDAS
Second Respondent

KENOSS PTY LIMITED
Third Respondent

CANBERRA LAND DEVELOPMENTS PTY LTD
Fourth Respondent

JUDGE:

STONE J

DATE OF ORDER:

4 MARCH 2010

WHERE MADE:

SYDNEY (HEARD IN PART VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:
1.Each of the applicant, the first respondent, the second respondent and the third respondent bear their own costs of the amended notice of motion filed in Court on 16 February 2010.
2.The applicant pay the fourth respondent’s costs of the amended notice of motion filed in Court on 16 February 2010.

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
Applicant

AND:
SPIROS BRENDAS
First Respondent

BEVERLEY ROSE BRENDAS
Second Respondent

KENOSS PTY LIMITED
Third Respondent

CANBERRA LAND DEVELOPMENTS PTY LTD
Fourth Respondent

JUDGE:

STONE J

DATE:

4 MARCH 2010

PLACE:

SYDNEY (HEARD IN PART VIA VIDEO LINK TO CANBERRA)

REASONS FOR JUDGMENT

On 30 January 2009 Graham J ordered Canberra Residential Developments Pty Limited (CRD) to pay the respondents’ costs incurred in connection with an unsuccessful application made by CRD; Canberra Residential Developments Pty Limited v Brendas (No5) [2009] FCA 34; 69 ACSR 435. On 16 February 2010 following a hearing on the applicant’s notice of motion, I set aside an interim certificate of taxation issued on 8 February 2010 in respect of a bill of costs submitted by the first, second and third respondents;

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 169
Decision Date

CaseChat Overview and Summary

The case of Canberra Residential Developments Pty Limited v Brendas [2010] FCA 169 involved the applicant, Canberra Residential Developments Pty Limited, and four respondents, Spiros Brendas, Beverley Rose Brendas, Kenoss Pty Limited, and Canberra Land Developments Pty Ltd. The primary dispute centered on the apportionment of costs related to a previous unsuccessful application made by the applicant. The case was heard in the Federal Court of Australia, General Division, and the presiding judge was Stone J. The judgment was delivered on 4 March 2010.

The legal issues that the court needed to resolve included the appropriateness of the interim certificate of taxation issued for the respondents' costs and the allocation of costs for the notice of motion filed by the applicant. The applicant sought to set aside the interim certificate and argued that it was successful in having the certificate set aside, while the respondents defended their rights under the previous costs order. Additionally, the applicant aimed to stay the previous costs order, restrain the respondents from drawing on the bank guarantees provided as security for the costs, and secure an additional $40,000 from the Court.

The court's reasoning began by acknowledging the applicant's success in having the interim certificate set aside, thereby vindicating its right to object to the interim assessment. However, the court also recognized that the respondents successfully defended their rights under the previous costs order. Given that both parties were partially successful, the court exercised its discretion under the Federal Court of Australia Act 1976 (Cth) s 43(2) to apportion the costs between the parties. The court found that it was appropriate for the applicant and the respondents to bear their own costs of the notice of motion. Furthermore, since the fourth respondent, Canberra Land Developments Pty Ltd, had incurred wholly unnecessary costs due to the applicant's actions, the court ordered the applicant to pay the fourth respondent's costs of the notice of motion.

In summary, the court ruled that each party would bear their own costs of the notice of motion, except for the fourth respondent, for whom the applicant was ordered to pay the costs incurred.

Orders