Diakyne Pty Limited v Ralph (No 2)

FEDERAL COURT OF AUSTRALIA

Diakyne Pty Limited v Ralph (No 2) [2009] FCA 780

COSTS – whether indemnity costs order warranted – whether respondents’ conduct in rejecting offers of settlement by the applicant amounted to conduct unreasonable or imprudent

COSTS – whether proceeding should have been more suitably brought in another court – whether Order 62 rule 36A(2) of the Federal Court Rules operates to reduce costs payable

Held: ordinary order as to costs made

Corporations Act 2001 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules

DIAKYNE PTY LIMITED (ACN 099 168 402) v PAUL RONALD RALPH and COLORADO INVESTMENTS PTY LIMITED (ACN 063 688 611)

NSD 465 of 2008

JAGOT J
21 JULY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 465 of 2008

BETWEEN: DIAKYNE PTY LIMITED
(ACN 099 168 402)
Applicant

AND:

PAUL RONALD RALPH
First Respondent

COLORADO INVESTMENTS PTY LIMITED
(ACN 063 688 611)
Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	21 JULY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.There be judgment for the Applicant as against the First and Second Respondents in the amount of $110,000.00 plus interest as from 30 November 2007 until the date of Judgment (an amount of $17,211.50) being a total of $127,211.50.

2.The Cross-Claim be dismissed.

3.The Respondents/Cross-Claimants pay the Applicant/Cross-Respondent’s costs of the proceedings as agreed or taxed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 465 of 2008

BETWEEN: DIAKYNE PTY LIMITED
(ACN 099 168 402)
Applicant

AND:

PAUL RONALD RALPH
First Respondent

COLORADO INVESTMENTS PTY LIMITED
(ACN 063 688 611)
Second Respondent

JUDGE:	JAGOT J
DATE:	21 JULY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 7 July 2009 I delivered my principal reasons for decision in this proceeding (Diakyne Pty Limited v Ralph [2009] FCA 721). I ordered the parties to file draft orders reflecting the reasons for judgment for the applicant (including with respect to interest and costs). The parties agreed to the orders save as to costs.

2. The applicant seeks an order for party-party costs up to and including 28 May 2008 and costs on an indemnity basis as from 29 May 2008, subject to one matter arising under Order 62 rule 36A(2) of the Federal Court Rules. 

3. The debate between the parties has been limited to the question whether there should be an indemnity costs order.  The applicant relies on the affidavit of Mark Kingsley Hughes sworn 17 July 2009 which, amongst other things, annexes three offers made by the applicant to the respondents to settle the proceedings.  None of these offers were made pursuant to Order 23 of the Federal Court Rules.  Accordingly, the procedures for awarding costs under that Order do not automatically apply.

4. The first offer was…