Chowder Bay Pty Ltd v Paganin (No 2)

FEDERAL COURT OF AUSTRALIA

Chowder Bay Pty Ltd v Paganin (No 2) [2017] FCA 892

File number:

WAD 461 of 2013

Judge:

BARKER J

Date of judgment:

4 August 2017

Catchwords:

COSTS – application for costs order – whether third and fourth respondents entitled to indemnity costs – where third and fourth respondents made offer of settlement to applicants – whether applicants’ rejection of offer unreasonable

Legislation:

Federal Court Rules 2011 (Cth) R 25.05(3), R 25.14(2)

Cases cited:

Chowder Bay Pty Ltd v Paganin [2017] FCA 332

Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2011] FCAFC 141

Date of hearing:

Determined on the papers

Date of last submissions:

12 July 2017

Registry:

Western Australia

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Category:

Catchwords

Number of paragraphs:

53

Counsel for the Applicants:

Mr GS Clarke QC with Mr PJ Hannan

Solicitor for the Applicants:

Feinauer Commercial Lawyers

Counsel for the First Respondent:

Ms PE Cahill SC with Mr DM Fairweather

Solicitor for the First Respondent:

Cardinal Law Litigation + Dispute Resolution

Counsel for the Second Respondent:

The Second Respondent appeared in person

Counsel for the Third and Fourth Respondents:

Mr SM Davies SC with Mr SC Sudweeks

Solicitor for the Third and Fourth Respondents:

Jackson McDonald

ORDERS

WAD 461 of 2013

BETWEEN:

CHOWDER BAY PTY LTD ACN 008 898 959

First Applicant

MARK PATTERSON

Second Applicant

BADENPORT PTY LTD ACN 008 931 842 (and others named in the Schedule)

Third Applicant

AND:

DAVID ARTHUR PAGANIN

First Respondent

CHARLES WILLIAM EDWARD ROBERTSON

Second Respondent

M3PROPERTY (WA) PTY LTD ACN 074 470 563  (and another named in the Schedule)

Third Respondent

JUDGE:

BARKER J

DATE OF ORDER:

4 AUGUST 2017

THE COURT ORDERS THAT:

1.The applicants pay the costs of the third and fourth respondents:

(a)up to 11am on 17 November 2015, on a party and party basis; and

(b)after 11am on 17 November 2015, on an indemnity basis.

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

REASONS FOR JUDGMENT

BARKER J:

1. On 3 April 2017, I dismissed the application in this proceeding and ordered that unless a respondent indicated within seven days that it wished to move for a costs orders on some other terms, the applicants do pay the costs of each respondent, to be taxed if not agreed.  The third and fourth respondents (together, the valuers) then sought orders that the applicants pay their costs of the proceedings:

   (1)up to 11am on 17 November 2015, on a party and party basis; and

   (2)after 11am on 17 November 2015, on an indemnity basis.

2. Relying on R 25.14(2) of the Federal Court Rules 2011 (Cth) and the decision of the Full Court in Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2011] FCAFC 141 at [19], the valuers submit that the applicants unreasonably failed to accept an offer of comprise made to them.

3. In that regard, on 13…