FEDERAL COURT OF AUSTRALIA
Deep Investments Pty Ltd v Casey (No 4) [2018] FCA 1123
File number: NSD 2189 of 2016 Judge: GLEESON J Date of judgment: 2 August 2018 Catchwords: PRACTICE AND PROCEDURE – costs – each party to bear own costs of respondents’ partially successful strike out/summary judgment application where respondents substantially succeeded in strike out application but failed to obtain summary judgment – respondents to pay applicant’s costs of application to set aside defective notices to produce Legislation: Federal Court of Australia Act 1976 (Cth) s 43
Federal Court Rules 2011 rr 30.28, 40.04
Cases cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Deep Investments Pty Ltd v Casey (No 2) [2018] FCA 726
Deep Investments Pty Ltd v Casey (No 1) [2017] FCA 1643
Deep Investments Pty Ltd v Casey [2018] FCA 603; (2018) 125 ACSR 564
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2015] HCASL 15
DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251; 51 ACSR 555
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 5) [2018] FCA 19
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425
Qantas Airways Ltd v Lustig (No 2) [2015] FCA 782
Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306
Date of hearing: Determined on the papers Date of last submissions: Applicant: 8 June 2018
Respondents: 8 June 2018Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: Mr P Dunning QC with Dr W Wild Solicitor for the Applicant: K2 Law Counsel for the First, Second and Third Respondents: Mr S Donaldson SC with Mr M Friedgut Solicitor for the First, Second and Third Respondents: MinterEllison Counsel for the Fourth Respondent: Mr AC Harding Solicitor for the Fourth Respondent: K&L Gates Counsel for the Fifth, Sixth and Seventh Respondents: Mr A McGrath SC with Mr SE Gray Solicitor for the Fifth, Sixth and Seventh Respondents: Moray & Agnew ORDERS
NSD 2189 of 2016 BETWEEN: DEEP INVESTMENTS PTY LTD (ACN 003 339 319)
Applicant
AND: KEVIN CASEY
First Respondent
PAUL CLARKE
Second Respondent
CBC PARTNERS PTY LTD (ACN 104 815 483) (and others named in the Schedule)
Third Respondent
JUDGE:
GLEESON J
DATE OF ORDER:
2 AUGUST 2018
THE COURT ORDERS THAT:
1.Each party bear its own costs of the interlocutory applications filed 2 March 2017.
2.The first to third respondents pay the applicant’s costs of the application filed 26 April 2017 to set aside a notice to produce issued by…
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- Case
- [2018] FCA 1123
- Decision Date
CaseChat Overview and Summary
The court held that the respondents were substantially successful in their strike-out application, but the applicant succeeded in setting aside the defective notices to produce. The court found that the respondents’ costs should not be entirely disregarded and that each party should bear their own costs of the interlocutory applications filed on 2 March 2017. However, the court ordered the respondents to pay the applicant’s costs of the application filed on 26 April 2017 to set aside the defective notices to produce. The court reasoned that the respondents' failure to serve valid notices to produce constituted a significant breach of procedure and warranted the applicant’s recovery of costs.
The court made orders for each party to bear their own costs of the interlocutory applications filed on 2 March 2017. Additionally, the court ordered the first to third respondents to pay the applicant’s costs of the application filed on 26 April 2017 to set aside a notice to produce issued by them. The fourth respondent was ordered to pay the applicant’s costs of a similar application related to a notice to produce issued by him. Finally, the fifth to seventh respondents were ordered to pay the applicant’s costs of the application filed on 26 April 2017 to set aside a notice to produce issued by them. The orders reflect the court's determination of the respective entitlements to costs for the interlocutory applications and the consequences of the respondents’ procedural breaches.
Orders
Orders of the court
1. Each party bear its own costs of the interlocutory applications filed 2 March 2017.
2. The first to third respondents pay the applicant’s costs of the application filed 26 April 2017 to set aside a notice to produce issued by them to the applicant.
3. The fourth respondent pay the applicant’s costs of the application filed 26 April 2017 to set aside a notice to produce issued by him to the applicant.
4. The fifth to seventh respondents pay the applicant’s costs of the application filed 26 April 2017 to set aside a notice to produce issued by them to the applicant.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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