FEDERAL COURT OF AUSTRALIA
Culleton v Macquarie Leasing Pty Ltd (No 2) [2015] FCA 1478
Citation: Culleton v Macquarie Leasing Pty Ltd (No 2) [2015] FCA 1478 Appeal from: Macquarie Leasing Pty Limited v Culleton [2014] FCCA 1714 Parties: RODNEY NORMAN CULLETON v MACQUARIE LEASING PTY LIMITED (ACN 002 674 982) File number: NSD 1220 of 2014 Judge: PERRY J Date of judgment: 21 December 2015 Catchwords: COSTS – where appeal allowed by consent following the appellant effectively recasting the appeal – whether costs order in the Court below should be set aside – whether previous costs order made with summary judgment should be set aside – whether the appellant should be awarded his costs of the appeal – where appellant successful – where appellant’s conduct in the Court below was not suggestive of compliance with r 1.03(4) of the Federal Court Rules 2001 (Cth) – where grounds of appeal were not advanced in the Court below – where respondent conceded at first available opportunity once appraised of appellant’s new case Legislation: Bankruptcy Act1966 (Cth) s 43
Bankruptcy Regulations 1996 (Cth) reg 16.01
Federal Circuit Court Rules 2001 (Cth) r 16.05
Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)
Federal Court Rules 2011 (Cth) r 1.03, 36.01Cases cited: Cachia v Hanes (1994) 179 CLR 403
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Hockey v Fairfax Media Publications Pty Limited (No 2) [2015] FCA 750
Hughes v Western Australian Cricket Association (Inc.) (1986) ATPR 40-748
Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450
Summers v Repatriation Commission (No 2) [2015] FCAFC 64Date of hearing: 15 December 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 55 Counsel for the Appellant: Mr N Kidd SC Solicitor for the Appellant: Levitt Robinson Solicitors Counsel for the Respondent: Ms E Glover Solicitor for the Respondent: Douros Jackson Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1220 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: RODNEY NORMAN CULLETON
AppellantAND: MACQUARIE LEASING PTY LIMITED (ACN 002 674 982)
Respondent
JUDGE:
PERRY J
DATE OF ORDER:
21 DECEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Order 2 of the orders made by the Federal Circuit Court on 31 October 2014 is set aside.
2.There be no order as to costs in relation to the dismissal of the Creditor’s Petition in Federal Circuit Court proceedings number SYG 3241 of 2013.
3.Insofar as the order made on 9 March 2015 awarded costs of the appeal to the respondent up to and including that date, that order is confirmed.
4.The appellant is to pay the respondent’s costs of and incidental to the appeal as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE…
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- Case
- [2015] FCA 1478
- Decision Date
CaseChat Overview and Summary
The court examined the principles of awarding costs, which include that a successful party is generally entitled to its costs unless there are special circumstances justifying some other order. The court found that Mr Culleton's conduct in the Court below did not suggest compliance with the relevant rule and that the grounds of appeal were not advanced in the Court below. However, once Macquarie was appraised of Mr Culleton's new case, it conceded at the first available opportunity. The court concluded that the costs order made by the Federal Circuit Court should be set aside, and there should be no order as to costs in relation to the dismissal of the Petition. The order as to costs made on 9 March 2015 should be confirmed, and the appellant should be required to pay the respondent's costs of the appeal from 10 March 2015.
The court's decision was based on the principles of awarding costs and the conduct of the parties in the proceedings. The court found that while Mr Culleton was successful in his appeal, his conduct in the Court below did not warrant an award of costs to him. The court also noted that Macquarie had conceded at the first available opportunity once it was aware of Mr Culleton's new case. The final orders of the court were to set aside the costs order made by the Federal Circuit Court, confirm the order as to costs made on 9 March 2015, and require Mr Culleton to pay the respondent's costs of the appeal from 10 March 2015.
Orders
Orders of the court
1. Order 2 of the orders made by the Federal Circuit Court on 31 October 2014 is set aside.
2. There be no order as to costs in relation to the dismissal of the Creditor’s Petition in Federal Circuit Court proceedings number SYG 3241 of 2013.
3. Insofar as the order made on 9 March 2015 awarded costs of the appeal to the respondent up to and including that date, that order is confirmed.
4. The appellant is to pay the respondent’s costs of and incidental to the appeal as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
On 2 November 2015, the appellant filed and served a draft amended notice of appeal, an affidavit sworn by the appellant’s solicitor and further written submissions. Subsequently, the parties were able to reach agreement on the consent orders set out at [3] above. 3. CONSIDERATION3.1 Relevant principles The Court has power to award costs in all proceedings under s 43 of the FCA Act. That discretion includes power to order the parties to bear costs in specified proportions, and to award costs in favour of or against a party whether or not the party is successful in the proceeding (s 43(3)(c) and (e) respectively). The discretion to award costs must be exercised judicially and in a manner that relates to the particular litigation: Summers v Repatriation Commission (No 2) [2015] FCAFC 64 at [13]-[14] (Kenny, Murphy and Beach JJ). Importantly, it must be borne in mind that costs are compensatory in nature and not punitive: Hockey v Fairfax Media Publications Pty Limited (No 2) [2015] FCA 750 at [37] (White J). While the question of costs is a matter for the Court’s discretion, the general rule is that a successful party is entitled to its costs: Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at 234-235 [11] (Black CJ and French J); Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 at [2] (Beaumont and French JJ). In Hughes v Western Australian Cricket Association (Inc.) (1986) ATPR 40-748 at 48,136, Toohey J observed that the discretion must be exercised judicially and identified three principles as to the exercise of the discretion evident from the authorities: 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v. Godfrey (1920) 2 K.B. 47.2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v. Farquhar (1893) 1 Q.B. 564.3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them. In this sense, “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at p. 12. However, as the Full Court (Gummow, French and Hill JJ) said in Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272:Generally speaking, and notwithstanding the considerations referred to by Toohey J and the other authorities mentioned above, the demands of the community for greater economy and efficiency in the conduct of litigation may properly be reflected in a qualification of the presumption that a successful party is entitled to all its costs. In Commissioner of Australian Federal Police v Razzi (No 2) (1991) 101 ALR 425 at 430, Wilcox J, after referring to the importance of the general principle enunciated by Toohey J, said:But I do not think that courts should be reluctant to recognise the existence of exceptional cases. In these days of extensive court delays and high legal costs the courts should use all proper means to encourage parties to consider carefully what matters they will put in issue in their litigation. If parties come to realise that they will not necessarily recover the whole of their costs, even though they have unsuccessfully raised a discrete issue, they are likely better to consider whether the raising of that issue is a justifiable course to take.3.2 Costs in the Court below