CCL Secure Pty Ltd v Berry (No 2)

[2019] FCAFC 92

FEDERAL COURT OF AUSTRALIA

CCL Secure Pty Ltd v Berry (No 2) [2019] FCAFC 92

File number:

NSD 1622 of 2018

Judges:

MCKERRACHER, ROBERTSON AND LEE JJ

Date of judgment:

4 June 2019

Catchwords:

COSTS – whether costs order made below should be disturbed – settlement letter not orthodox Calderbank offer – primary judge’s costs order to remain – form of order to be made in lieu of order made by primary judge as to damages

Legislation:

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 43, 53

Federal Court Rules 2011 (Cth) rr 36.01, 41.04, 41.10

Cases cited:

Calderbank v Calderbank [1976] Fam 93

CCL Secure Pty Ltd v Berry [2019] FCAFC 81

Date of hearing:

Determined on the papers

Date of last submissions:

3 June 2019

Registry:

New South Wales

Division:

General Division

National practice area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking Finance and Insurance

Category:

Catchwords

Number of paragraphs:

11

Counsel for the Appellant:

Mr G Rich SC with Ms J Roy

Solicitor for the Appellant:

Arnold Bloch Leibler

Counsel for the Respondents:

Dr C S Ward SC with Mr P F Santucci

Solicitor for the Respondents:

Marque Lawyers

ORDERS

NSD 1622 of 2018

BETWEEN:

CCL SECURE PTY LTD ACN 072 353 452

Appellant

AND:

BENOY BERRY

First Respondent

GLOBAL SECURE CURRENCY LIMITED (COMPANY NUMBER 05127761)

Second Respondent

JUDGES:	MCKERRACHER, ROBERTSON AND LEE JJ
DATE OF ORDER:	4 JUNE 2019

THE COURT ORDERS THAT:

1.In place of Order 2 made by the primary judge on 17 August 2018, an order that there be judgment for the applicants below against the respondent below in the sum of $1,780,858 (with such judgment to take effect from 17 August 2018).

2.The respondents pay 25% of the appellant’s costs of the appeal as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. In CCL Secure Pty Ltd v Berry [2019] FCAFC 81 (principal judgment) the appeal of the appellant (Securency) was allowed in part, reducing the statutory compensation payable to the respondents from an amount of approximately $65 million to an amount of approximately $1.8 million.

2. Three issues remain outstanding:

   (1)First, whether the costs order made by the primary judge in the proceeding below should be disturbed?

   (2)Secondly, what costs order should be made in relation to the appeal proceeding?

   (3)Thirdly, the form of order to be made in lieu of order 2 made by the primary judge on 17 August 2018, so as to reflect the Full Court’s reasons.

3. As to the first issue, Securency seeks vacation of the order of the primary judge requiring it to pay the respondents costs below with the consequence that “each party is to bear its own costs” of the trial and of the appeal; in the alternative, it seeks an order that Securency pay no more than 50% of the respondents’ costs of the trial…