Centrestage Management Pty Ltd v Riedle & Ors (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CENTRESTAGE MANAGEMENT PTY LTD
v RIEDLE & ORS (No.2) [2007] FMCA 1260

COSTS – COPYRIGHT – Claim and cross-claim – neither party wholly successful – indemnity costs on one issue.

Federal Magistrates Act 1999, s.79

Federal Court Rules 1979, O.62
Federal Magistrates Court Rules 2001, rr.21.02, 21.10, 21.11, Sch 1 Pt 1

AWB Ltd v Cole(No 6) [2002] FCA 1274
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400
Grbavac v Hart [1997] 1 VR 154
Robertson & Moffat v Belson [1905] VLR 555

Applicant: CENTRESTAGE MANAGEMENT PTY LTD (ACN 107 072 239)

Respondent: TONY RIEDLE

Cross-claimant: TONY RIEDLE

Cross-respondent: CENTRESTAGE MANAGEMENT PTY LTD (ACN 107 072 239)

File number: MLG 227 of 2006

Judgment of: Riley FM

Hearing date: 19 July 2007

Date of last submission: 23 July 2007

Delivered at: Melbourne

Delivered on: 2 August 2007

REPRESENTATION

Counsel for the Applicant: Dr R Dean

Solicitors for the Applicant: R & G Lawyers

Counsel for the Respondent: Michael Rivette

Solicitors for the Respondent: Middletons

ORDERS

1. The applicant pay the respondent $47,563.06 in costs and disbursements together with 90% of the amount properly disbursed to Mr Hodder and 100% of the amount properly disbursed to Mr Leong.

2. The parties have liberty to apply.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 227 of 2006

CENTRESTAGE MANAGEMENT PTY LTD (ACN 107 072 239)

Applicant

And

TONY RIEDLE

Respondent

And

TONY RIEDLE

Cross-claimant

And

CENTRESTAGE MANAGEMENT PTY LTD (ACN 107 072 239)

Cross-respondent

REASONS FOR JUDGMENT

1. This is an application for costs.  Judgement in the principal proceeding between the parties was delivered on 19 July 2007.  The application made by the applicant was dismissed and the respondent was partially successful in his cross-claim. The applicant seeks orders that each party bear his or its own costs while the respondent seeks costs on an indemnity or other special basis.

2. The applicant argues that the respondent substantially lost his cross-claim in that he received only about 0.5% of the damages he claimed.  The applicant noted that the respondent had sought a declaration in addition to the injunction that he was granted but that the declaration was refused.  The applicant argued that the issues in the case had been so intertwined that it could not be said that any particular issue prolonged the hearing.

3. The applicant referred to the decision of Robertson & Moffat v Belson [1905] VLR 555. In that case, the plaintiff had minimal success in its claim and substantially failed in the defendant’s counterclaim. The court ordered that the plaintiff pay all of the costs of the claim and counterclaim, saying that the small measure of success that the plaintiff had achieved was de minimis.  The applicant argued that the respondent in the present case had so little success in his claim that it could also be described as de minimis. 

4. The applicant also…