Commonwealth Bank of Australia v Daleport Pty Ltd (in receivership) (No 5)

The case involved a dispute between the Commonwealth Bank of Australia and Daleport Pty Ltd (in receivership). The matter was heard in the Federal Court of Australia. The dispute related to an application for the variation of a costs order entered by the court and an application for a gross sum costs order. The bank had previously sought an assessment of costs and opposed any lump sum quantification, but the defendant rejected the bank's offer of payment and sought an assessment of costs.

The legal issue that the court had to decide was whether the bank's position should be characterised as a capitulation, given that it had previously opposed any lump sum quantification of costs. The court had to consider the circumstances of the case and determine whether the bank's conduct warranted a variation of the costs order.

The court held that the bank's conduct did not amount to a capitulation and that there were no exceptional circumstances that warranted a variation of the costs order. The court found that the bank's previous opposition to a lump sum quantification of costs was not inconsistent with its subsequent application for a gross sum costs order. The court also held that the defendant's rejection of the bank's offer of payment and its subsequent application for an assessment of costs did not amount to a capitulation on the part of the bank.

As a result, the court dismissed the application for the variation of the costs order and the application for a gross sum costs order. The final orders of the court were that the defendant pay the bank's costs of the application, to be taxed on the basis of the bank's offer of payment.