FEDERAL COURT OF AUSTRALIA
Dye v Commonwealth Securities Limited (No 2) [2012] FCA 407
Citation: Dye v Commonwealth Securities Limited (No 2) [2012] FCA 407 Parties: VIVIENNE LOUISE DYE v COMMONWEALTH SECURITIES LIMITED, RALPH NORRIS and MICHAEL BLOMFIELD
VIVIENNE LOUISE DYE v COMMONWEALTH BANK OF AUSTRALIA and BARBARA CHAPMAN
File numbers: NSD 1165 of 2008
NSD 1526 of 2010Judge: BUCHANAN J Date of judgment: 20 April 2012 Catchwords: COSTS – application for indemnity costs – proceedings were unjustified and should not have been commenced – offer of compromise – Calderbank letters
COSTS – lump sum order for the payment of costs – willingness to forego certain costs – impecunious party – burden and additional cost of taxation process
Legislation: Federal Court Rules 2011 Cases cited: Dye v Commonwealth Securities Limited [2012] FCA 242 Date of hearing: Heard on the papers Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: No appearance Solicitor for the Applicant: No appearance Counsel for the Respondents: Mr P Gray SC Solicitor for the Respondents (NSD 1165 of 2008): Freehills Solicitor for the Respondents (NSD 1526 of 2010): Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1165 of 2008
BETWEEN: VIVIENNE LOUISE DYE
ApplicantAND: COMMONWEALTH SECURITIES LIMITED
First RespondentRALPH NORRIS
Second RespondentMICHAEL BLOMFIELD
Third Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
20 APRIL 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Costs ordered by the Supreme Court of New South Wales are not affected by these orders.
2.Costs ordered by the Full Court of this Court are not affected by these orders.
3.Previous costs orders made at first instance in either of the proceedings in this Court are revoked.
4.The applicant is to pay the respondents’ costs in both proceedings, assessed overall at $5,850,000.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1526 of 2010
BETWEEN: VIVIENNE LOUISE DYE
ApplicantAND: COMMONWEALTH BANK OF AUSTRALIA
First RespondentBARBARA CHAPMAN
Second RespondentJUDGE:
BUCHANAN J
DATE OF ORDER:
20 APRIL 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Costs ordered by the Supreme Court of New South Wales are not affected by these orders.
2.Costs ordered by the Full Court of this Court are not affected by these orders.
3.Previous costs orders made at first instance in either of the proceedings in this Court are revoked.
4.The applicant is to pay the respondents’ costs in both proceedings, assessed overall at $5,850,000.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1165 OF 2008
BETWEEN: VIVIENNE LOUISE DYE
ApplicantAND: COMMONWEALTH SECURITIES LIMITED
First RespondentRALPH NORRIS
Second RespondentMICHAEL BLOMFIELD
Third Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1526 of…
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- Case
- [2012] FCA 407
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved determining whether the proceedings were indeed unjustified and whether the applicant was entitled to indemnity costs. Additionally, the court had to consider the effect of the respondents' offers of compromise under Calderbank, and how these affected the applicant's right to indemnity costs. The court also needed to weigh the burden and additional cost of the taxation process against the financial circumstances of the parties involved.
The High Court found that the respondents' proceedings were unjustified and should not have been commenced. Consequently, the court granted the applicant indemnity costs, assessing them at $5,850,000. The court determined that the respondents' Calderbank offers of compromise did not negate the applicant's right to indemnity costs, given the clear lack of justification for the proceedings. The court also acknowledged the burden and additional cost of the taxation process, as well as the financial situation of the parties, in arriving at the overall costs assessment. The court's final orders included the revocation of previous costs orders made at first instance, ensuring that the applicant would bear the respondents' costs in both proceedings.
Orders
Orders of the court
1. Costs ordered by the Supreme Court of New South Wales are not affected by these orders.
2. Costs ordered by the Full Court of this Court are not affected by these orders.
3. Previous costs orders made at first instance in either of the proceedings in this Court are revoked.
4. The applicant is to pay the respondents’ costs in both proceedings, assessed overall at $5,850,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
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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