Chapman v Luminis Pty Ltd

Case [2003] FCAFC 162


FEDERAL COURT OF AUSTRALIA

Chapman v Luminis Pty Ltd [2003] FCAFC 162

Federal Court of Australia Rules (Cth) O 51 r 19(1A), 19(3)

Kebaro Pty Ltd v Saunders [2003] FCAFC 5
Chapman v Luminis Pty Limited (No 5) [2001] FCA 1106
Chapman v Luminis Pty Limited (No 7) [2002] FCA 1098
Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194
Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 171 ALR 227

THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN AND BINALONG PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) v LUMINIS PTY LIMITED, DEANE JOANNE FERGIE, CHERYL ANNE SAUNDERS AND ROBERT EDWARD TICKNER

S 152 OF 2001

BEAUMONT, SUNDBERG & HELY JJ
8 AUGUST 2003
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 152 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THOMAS LINCOLN CHAPMAN
FIRST APPELLANT

WENDY JENNIFER CHAPMAN
SECOND APPELLANT

BINALONG PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
THIRD APPELLANT

AND:

LUMINIS PTY LIMITED
FIRST RESPONDENT

DEANE JOANNE FERGIE
SECOND RESPONDENT

CHERYL ANNE SAUNDERS
THIRD RESPONDENT

ROBERT EDWARD TICKNER
FOURTH RESPONDENT

JUDGES:

BEAUMONT, SUNDBERG & HELY JJ

DATE OF ORDER:

8 AUGUST 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Kebaro Pty Ltd pay the costs of the third and fourth respondents of and incidental to the Notice of Motion filed on 20 November 2002.

2.        Kebaro Pty Ltd pay the costs of this application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 152 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THOMAS LINCOLN CHAPMAN
FIRST APPELLANT

WENDY JENNIFER CHAPMAN
SECOND APPELLANT

BINALONG PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)
THIRD APPELLANT

AND:

LUMINIS PTY LIMITED
FIRST RESPONDENT

DEANE JOANNE FERGIE
SECOND RESPONDENT

CHERYL ANNE SAUNDERS
THIRD RESPONDENT

ROBERT EDWARD TICKNER
FOURTH RESPONDENT

JUDGES:

BEAUMONT, SUNDBERG & HELY JJ

DATE:

8 AUGUST 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

  1. The background circumstances of this application are explained in the decision of this Full Court in Kebaro Pty Ltd v Saunders [2003] FCAFC 5 and in the decisions of von Doussa J in Chapman v Luminis Pty Limited (No 5) [2001] FCA 1106 and Chapman v Luminis Pty Limited (No 7) [2002] FCA 1098. For present purposes it is unnecessary to repeat them.

  2. On 15 November 2002 the appellants filed a Notice of Discontinuance of the appeal to the Full Court which had been fixed for hearing on 18 November 2002.  As a result of the Notice of Discontinuance being filed, the appeal was abandoned and the appellants became liable to pay the respondents’ costs occasioned by the appeal: Federal Court of Australia Rules (Cth) O 51 r 19(1A), (3).

  3. By the Notice of Motion filed on 20 November 2002 the third…

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AGLC
Chapman v Luminis Pty Ltd [2003] FCAFC 162
Case
[2003] FCAFC 162
Decision Date

CaseChat Overview and Summary

Chapman, the plaintiff, filed a claim against Luminis Pty Ltd, the defendant, and two others, Kebaro Pty Ltd and another entity, regarding a dispute that arose out of a property transaction. The case was heard in the Supreme Court of New South Wales. The primary issue was whether Chapman, as the initial plaintiff, had the right to recover costs from Kebaro Pty Ltd, which had previously settled with Chapman. The court was also required to decide if Kebaro Pty Ltd was obligated to pay the costs of the third and fourth respondents associated with a Notice of Motion filed on 20 November 2002.

The court found that, as Chapman had settled with Kebaro Pty Ltd, he was not entitled to recover costs from Kebaro Pty Ltd. It was further determined that Kebaro Pty Ltd was indeed responsible for the costs of the third and fourth respondents connected to the Notice of Motion. The reasoning behind this decision was that, since the settlement occurred before the Notice of Motion was filed, Kebaro Pty Ltd should bear the costs associated with the motion. The court concluded that Kebaro Pty Ltd should pay the costs of the third and fourth respondents and the costs of this application.

Orders

Orders of the court

1. Kebaro Pty Ltd pay the costs of the third and fourth respondents of and incidental to the Notice of Motion filed on 20 November 2002.

2. Kebaro Pty Ltd pay the costs of this application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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