FEDERAL COURT OF AUSTRALIA
Elecspess Pty Ltd v LED Technologies Pty Ltd [2013] FCAFC 116
Citation: Elecspess Pty Ltd v LED Technologies Pty Ltd
[2013] FCAFC 116Appeal from: LED Technologies Pty Ltd v Elecspess Pty Ltd
[2008] FCA 1941LED Technologies Pty Ltd v Elecspess Pty Ltd (No 2) [2009] FCA 141
Parties: ELECSPESS PTY LTD (ACN 104 535 597), ADVANCED AUTOMOTIVE AUSTRALIA PTY LTD (ACN 005 955 948), REN INTERNATIONAL PTY LTD (ACN 115 026 438) and OLSEN INDUSTRIES PTY LTD (ACN 098 385 730) v LED TECHNOLOGIES PTY LTD (ACN 100 887 474) File number: VID 168 of 2009 Judges: BESANKO & JESSUP JJ Date of judgment: 18 October 2013 Catchwords: PRACTICE AND PROCEDURE – application by respondent for costs to be taxed on an indemnity basis – application made pursuant to liberty granted on 23 December 2010 – whether Federal Court Rules 1979 or Federal Court Rules 2011 applied to respondent’s application – whether order should be made under r 1.04 of Federal Court Rules 2011 for the application of Federal Court Rules 1979 to respondent’s application
COSTS – whether O 23 r 11(6) of Federal Court Rules 1979 entitles offeror to indemnity costs only where rejection of offer imprudent or unreasonable – whether effect should not be given to conventional operation of O 23 r 11(6) of Federal Court Rules 1979
Legislation: Federal Court Rules 1979 (Cth), O 23 r 11
Federal Court Rules 2011 (Cth), r 1.04Cases cited: Calderbank v Calderbank [1976] Fam 93
CGU Insurance Limited v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173
Coshott v Learoyd [1999] FCA 276
Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1
Futuretronics.Com.Au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40
IFTC Broking Services Ltd v Commissioner of Taxation (2010) 268 ALR 1
Keller v LED Technologies Pty Ltd (2010) 185 FCR 449
Keller v LED Technologies Pty Ltd(No 2) [2010] FCAFC 160
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2011] FCAFC 119
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2011] FCAFC 141
LED Technologies Pty Ltd v Elecspess Pty Ltd (2008) 80 IPR 85
LED Technologies Pty Ltd v Elecspess Pty Ltd (No 2) [2009] FCA 141
McDonald v Parnell Laboratories (Aust) Pty Limited (No 2) (2007) 165 FCR 591
Primus Telecommunications Pty Ltd v Kooee Communications Pty Ltd [2011] FCA 8
Sagacious Legal Pty Limited v Wesfarmers General Insurance Ltd (No 2) [2011] FCAFC 66
Seven Network Ltd v News Ltd (2009) 182 FCR 160Date of hearing: 2 September 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Counsel for the Appellants: Mr P Ehrlich Solicitor for the Appellants: Altus Lawyers Counsel for the Respondent: Ms H Rofe Solicitor for the Respondent: Griffith Hack
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 168 of 2009
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ELECSPESS…
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- Case
- [2013] FCAFC 116
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Federal Court Rules 1979 or the Federal Court Rules 2011 applied to the defendant's application for indemnity costs, and whether the defendant was entitled to indemnity costs under Order 23 rule 11(6) of the Federal Court Rules 1979. The court considered whether the operation of Order 23 rule 11(6) should be modified in light of the transition from the Federal Court Rules 1979 to the Federal Court Rules 2011.
The court held that the Federal Court Rules 2011 applied to the defendant's application for indemnity costs, but that the Federal Court Rules 1979 applied to the taxation of those costs. This was because the defendant's costs were incurred after the commencement of the Federal Court Rules 2011, but the application for indemnity costs was made pursuant to a liberty granted before the commencement of the Federal Court Rules 2011. The court also held that the defendant was entitled to indemnity costs under Order 23 rule 11(6) of the Federal Court Rules 1979, as the plaintiff's rejection of the defendant's offer to settle was imprudent or unreasonable.
The court made several orders, including that the Federal Court Rules 1979 apply to the taxation of the defendant's costs to the extent that they are to be paid by the plaintiff. The court also ordered that the defendant's costs be taxed on an indemnity basis to the extent that they satisfy certain conditions. Finally, the court ordered that the plaintiff pay the defendant's costs of its application for indemnity costs.
Orders
Orders of the court
1. Pursuant to r 1.04(3) of the Federal Court Rules 2011, the Federal Court Rules as in force immediately before 1 August 2011 apply to the taxation of so much of the respondent’s costs, including its costs of the cross-appeal, as are to be paid by the first appellant.
2. To the extent that the respondent’s costs satisfy both of the following conditions, namely,
(a) they were incurred after 11 am on 10 April 2009; and
(b) they are to be paid by the first appellant pursuant to –
i) one or more of Orders 6, 7, 11 and 12 made on 23 December 2010, or
ii) Order 3 below;
those costs be taxed on an indemnity basis.
3. The first appellant pay the respondent’s costs of its application pursuant to the liberty reserved by Order 14 made on 23 December 2010.
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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