Coshott v Prentice (No 2)

[2017] FCA 394

FEDERAL COURT OF AUSTRALIA

Coshott v Prentice (No 2) [2017] FCA 394

File number(s):

NSD 786 of 2015

Judge(s):

JAGOT J

Date of judgment:

7 April 2017

Catchwords:

TAXATION – application for review of taxation of costs - construction of r 40.27 of Federal Court Rules 2011 (Cth) – whether taxing officer erred by disallowing costs where no objection taken – whether taxing officer erred in disallowing GST on disbursements

Legislation:

Federal Court Rules 2011 (Cth) rr 40.25, 40.27, 40.34

Cases cited:

Cassimatis v Australian Securities and Investment Commission [2016] FCA 131; (2016) 334 ALR 350

Templeton v Australian Securities and Investments Commission [2015] FCAFC 137; (2015) 108 ACSR 545

Date of hearing:

7 April 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

22

Counsel for the Appellants:

Mr O Jones

Solicitor for the Appellants:

Comino Prassas Solicitors

Counsel for the Respondent:

Mr J Johnson

Solicitor for the Respondent:

O’Neill Partners Commercial Lawyers Incorporating Sally Nash & Co

ORDERS

NSD 786 of 2015

BETWEEN:

RONALD MICHAEL COSHOTT

First Appellant

FEWIN PTY LIMITED ACN 051 132 453

Second Appellant

AND:

MICHAEL WILLIAM PRENTICE

Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	7 APRIL 2017

THE COURT ORDERS THAT:

1.The applications for review of the taxation of costs be dismissed.

2.The applicants pay the costs of the respondent.

3.Liberty be granted to the respondent to apply for a lump sum costs order within seven days.

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

REASONS FOR JUDGMENT

JAGOT J:

1. This is an application for review of taxations of two bills of costs carried out by a Registrar of the Court as a taxing officer. 

2. The first issue is the proper construction of r 40.27 of the Federal Court Rules 2011 (Cth). Rule 40.27 is in the following terms:

   (1)If a notice of objection under rule 40.25(1) has not been filed, only the party who has filed the bill may attend the taxation.

   (2)If a notice of objection has been filed, only the party who has filed the notice of objection and a party who has filed a notice of response under this Division may attend the taxation.

   (3)A party is bound by the party’s notice of objection or notice of response, with the effect that:

   (a)no amount will be taxed off any item to which objection has not been taken in the notice of objection; and

   (b)no amount will be allowed for any item to which objection has been taken in the notice of objection but not responded to in the notice of response.

   (4)Despite subrule (3) the taxing officer will only allow costs to which a party is entitled.

   (5)At the taxation, a party may apply to the taxing officer for leave to make oral submissions for the purpose of explaining or clarifying an objection in the notice of objection or a response in the notice…