Canberra Residential Developments Pty Limited v Brendas - [2010] FCA 90

FEDERAL COURT OF AUSTRALIA
Canberra Residential Developments Pty Limited v Brendas [2010] FCA 90

Citation: Canberra Residential Developments Pty Limited v Brendas [2010] FCA 90

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: 16 February 2010

Catchwords: COSTS – whether costs order should be stayed -
whether interim certificate of taxation issued in breach of O62 r 42(1) – whether further taxation should be stayed

Legislation: Federal Court Rules O62 r 42; r 46

Date of hearing: 16 February 2010

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

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 22

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: O'Connor Harris

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:

16 FEBRUARY 2010

WHERE MADE:

SYDNEY(HEARD IN PART VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:
1.The Interim Certificate of Taxation issued on 8 February 2010 be set aside.
2.The Taxing Officer be restrained from issuing a Certificate of Taxation pursuant to the decision recorded in Order 1 made on 8 February 2010 until the expiry of 14 days from the date of these orders.
3.The parties have leave to file submissions as to costs within 5 days of these orders.
4.The application in the amended notice of motion filed in Court on 16 February 2010 be otherwise dismissed.

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:

16 FEBRUARY 2010

PLACE:

SYDNEY (HEARD IN PART VIA VIDEO LINK TO CANBERRA)

REASONS FOR JUDGMENT

On 30 January 2009 Graham J made orders dismissing an application made by Canberra Residential Developments Pty Limited (CRD) and ordering that it pay the costs of the respondents in that proceeding; [2009] FCA 34, 69 ACSR 435. CRD filed a notice of appeal on 20 February 2009. It is likely that the appeal will be heard over a number of days in the week commencing 11 May 2010. In the interim the first, second and…

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 90
Decision Date

CaseChat Overview and Summary

Canberra Residential Developments Pty Limited (CRD) applied to the Federal Court of Australia for relief from orders made by Graham J and from the taxing officer. The respondents were Spiros Brendas, Beverley Rose Brendas, Kenoss Pty Limited and Canberra Land Developments Pty Ltd. CRD sought to set aside an interim certificate of taxation and to restrain the taxing officer from issuing a final certificate of taxation until the appeal was determined. They also sought to stay the costs order made by Graham J and to restrain the respondents from drawing on bank guarantees provided in support of security for costs. Finally, they sought to restrain the payment of $40,000 to the respondents from the funds held in trust for costs.

The court was required to determine whether the interim certificate of taxation should be set aside, whether the costs order should be stayed pending the appeal, whether the taxation of the costs should be stayed pending the appeal, whether the respondents should be restrained from drawing on the bank guarantees, and whether the $40,000 should be paid into the Court.

The court found that the interim certificate of taxation should be set aside because the taxing officer did not allow the required 14 days between the date of her decision and the date of issue of the interim certificate, contrary to O62, r 42(1). The court also found that the costs order should not be stayed pending the appeal, and that the taxation of the costs should not be stayed pending the appeal. The court found that the respondents should not be restrained from drawing on the bank guarantees, and that the $40,000 should not be paid into the Court. The court gave the parties five days within which to file written submissions as to costs.

Orders