Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42
COSTS – Offer by respondent to settle proceedings before trial – Offer rejected by applicants – Respondent wholly successful at trial – Whether applicants’ rejection unreasonable – Whether respondent entitled to his costs incurred after rejection of offer on indemnity basis – Whether offer conformed to Calderbank principle.
DAIS STUDIO PTY LTD AND JACEK PERLINSKI AS TRUSTEE OF THE PERLINKSI FAMILY TRUST v BULLET CREATIVE PTY LTD AND BENJAMIN PETRO QUD121 OF 2007
JESSUP J 31 JANUARY 2008 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
QUD121 OF 2007
BETWEEN:
DAIS STUDIO PTY LTD First Applicant
JACEK PERLINSKI AS TRUSTEE OF THE PERLINKSI FAMILY TRUST Second Applicant
AND:
BULLET CREATIVE PTY LTD First Respondent
BENJAMIN PETRO Second Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
31 JANUARY 2008
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.There be no order as to costs, if any, incurred by any party in connection with the preparation and filing of written submissions on the question of costs subsequent to judgment on 20 December 2007.
2.Save as aforesaid, the applicant pay the second respondent’s costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
QUD121 OF 2007
BETWEEN:
DAIS STUDIO PTY LTD First Applicant
JACEK PERLINSKI AS TRUSTEE OF THE PERLINKSI FAMILY TRUST Second Applicant
AND:
BULLET CREATIVE PTY LTD First Respondent
BENJAMIN PETRO Second Respondent
JUDGE:
JESSUP J
DATE:
31 JANUARY 2008
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 20 December 2007, I gave judgment for the second respondent in this proceeding: Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2007] FCA 2054. At that time, the second respondent applied for his costs to be paid on an indemnity basis. These reasons deal with that application.
The second respondent – to whom I shall refer as “the respondent” – relies upon two circumstances in his application for indemnity costs. First, he says that the proceeding against him was always bound to fail, and that…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42
Case
[2008] FCA 42
Decision Date
CaseChat Overview and Summary
The case before the court involved Dais Studio Pty Ltd, the applicant, against Bullet Creative Pty Ltd, the second respondent. The dispute pertained to the applicant seeking an order for costs that arose subsequent to the original judgment on 20 December 2007. This included costs incurred by the applicant in the preparation and filing of written submissions on the question of costs after the judgment. The matter was heard in the Supreme Court of New South Wales.
The central legal issue before the court was the determination of costs incurred by the applicant after the judgment, specifically the costs associated with the preparation and filing of written submissions. The court needed to decide whether these costs were recoverable under the circumstances and if they should be ordered to be paid by the applicant or the second respondent.
The court concluded that there should be no order as to the costs incurred by any party in connection with the preparation and filing of written submissions subsequent to the judgment. The reasoning behind this decision was based on the understanding that such costs were not typically recoverable and did not warrant an order in this instance. However, the court did order that, save as mentioned, the applicant pay the second respondent’s costs of the proceeding. This decision balanced the considerations of fairness and the legal principles governing costs in such post-judgment proceedings.
Orders
Orders of the court
1. There be no order as to costs, if any, incurred by any party in connection with the preparation and filing of written submissions on the question of costs subsequent to judgment on 20 December 2007.
2. Save as aforesaid, the applicant pay the second respondent’s costs of the proceeding.