Duus v Dalvella Pty Ltd (No. 2)

[2008] FCA 187

FEDERAL COURT OF AUSTRALIA

Duus v Dalvella Pty Ltd (No. 2) [2008] FCA 187

PRACTICE AND PROCEDURE – consideration of an application for an order in relation to costs pursuant to order 62, rule 3 of the Federal Court Rules

Federal Court Rules, Order 62, Rule 3

ROSS ANDREW DUUS AND DAVID JOHN CRANSTOUN v DALVELLA PTY LTD ACN 076 620 409 (IN ITS CAPACITY AS TRUSTEE FOR THE CLIFFSIDE TRUST) AND DONEMATE PTY LTD ACN 076 620 454 (IN ITS CAPACITY AS TRUSTEE FOR THE KINGS BEACH TRUST)

QUD 28 OF 2007

GREENWOOD J
23 JANUARY 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 28 OF 2007

BETWEEN:

ROSS ANDREW DUUS
First Applicant

DAVID JOHN CRANSTOUN
Second Applicant

AND:

DALVELLA PTY LTD (ACN 076 620 409) (IN ITS CAPACITY AS TRUSTEE FOR THE CLIFFSIDE TRUST)
First Respondent

DONEMATE PTY LTD (ACN 076 620 454) (IN ITS CAPACITY AS TRUSTEE FOR THE KINGS BEACH TRUST)
Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	23 JANUARY 2008
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Leave be given to the first and second applicants to deliver and tax a bill of costs in relation to the costs the subject of order 2 of the orders of the Court made on 23 January 2008, notwithstanding that the principal proceeding is not concluded and the respondents in the proceeding shall pay those costs either determined by taxation or by agreement forthwith upon taxation or agreement notwithstanding that the principal proceeding is not concluded. 

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 28 OF 2007

BETWEEN:

ROSS ANDREW DUUS
First Applicant

DAVID JOHN CRANSTOUN
Second Applicant

AND:

DALVELLA PTY LTD ACN 076 620 409 (IN ITS CAPACITY AS TRUSTEE FOR THE CLIFFSIDE TRUST
First Respondent

DONEMATE PTY LTD ACN 076 620 454 (IN ITS CAPACITY AS TRUSTEE FOR THE KINGS BEACH TRUST)
Second Respondent

JUDGE:	GREENWOOD J
DATE:	23 JANUARY 2008
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an application for an order that the costs, the subject of order (2) of the orders made today in Duus v Dalvella Pty Ltd [2008] FCA 26, be the subject of a further order pursuant to order 62 rule 3(3) that the party having the benefit of the costs order, the first and second applicants, be entitled to deliver a bill of costs and recover those costs prior to the determination of the proceedings. The authority of Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No. 2) – BC200704540 has been cited to me as a basis upon which leave ought not to be given pursuant to order 62 rule 3(3).  The point of differentiation between that decision of Besanko J and the present case is that the circumstances confronting Besanko J involved default in the conduct of a proceeding.

2. The orders made in this matter (Duus v Dalvella) relate to orders consequent upon an independent application for leave to extend time for leave to appeal from an interlocutory judgment.  The applicants for leave have failed to comply with the rules and seek to make out special grounds for leave.  I am satisfied that that matter is a discrete matter rather than a costs order in the course of the resolution of step in the proceeding itself.  Accordingly, I make a further order that the costs of the interlocutory proceeding shall be costs which the party having the benefit of that order is entitled to pursue and I give leave to deliver a bill of costs immediately. 

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        23 January 2008

Counsel for the Applicants (Respondents on the Motion):	Mr Sullivan
Solicitor for the Applicants (Respondents on the Motion):	DLA Phillips Fox
Solicitor for the Respondents (Applicants on the Motion):	Mr Lynch, Lynch & Company
Date of Hearing:	23 January 2008
Date of Judgment:	23 January 2008