FEDERAL COURT OF AUSTRALIA
Expectation Pty Ltd v PRD Realty Pty Ltd [2003] FCA 1086
COSTS – Discretion – whether there is some special feature to justify departure from principle that costs be awarded on a party and party basis – whether appropriate to order successful respondents not have costs on an issue on which they were unsuccessful – whether applicant should have its costs on that issue – whether Sanderson or Bullock order should be made against first and second respondents in favour of third respondent – whether such an order should be on an indemnity basis
Trade Practices Act 1974 (Cth) s 52
Federal Court Act 1976 (Cth) s 43
Federal Court Rules O 6 r 8, O 23 r 11(5), O 62Nella v Kingia Pty Ltd (1989) 11 ATPR 50,402 referred to
Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121 referred to
Calderbank v Calderbank (1975) 3 All ER 333 cited
Black v Lipovac BHNF Maria Lipovac [1998] FCA 699 cited
Coshott v Learoyd [1999] FCA 276 referred to
McHattan v Saramoa Charters Pty Ltd [1996] FCA 891 referred to
Hughes v Western Australian Cricket Association (Inc) [1986] 8 ATPR 48, 134 referred to
Cretazzo v Lombardi (1975) 13 SASR 4 considered
Mobile Innovations Ltd v Vodaphone Pacific Ltd (2003) NSWSC 423 mentioned
Oshlack v Richmond River Council (1998) 193 CLR 72 cited
Re: Wilcox: Ex parte Venture Industries (1996) 92 FCR 151 followedEXPECTATION PTY LTD (ACN 009 030 102) v PRD REALTY PTY LTD
(ACN 009 954 956) and OTHERSNo WG 181 of 1996
SPENDER J
BRISBANE
9 OCTOBER 2003
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
WG 181 OF 1996
BETWEEN:
EXPECTATION PTY LTD (ACN 009 030 102)
APPLICANTAND:
PRD REALTY PTY LTD (ACN 009 954 956)
FIRST RESPONDENTGORDON DOUGLAS
SECOND RESPONDENTJOHN HAMMOND
THIRD RESPONDENTJUDGE:
SPENDER J
DATE OF ORDER:
9 OCTOBER 2003
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The proceeding against the first, second and third respondents be dismissed.
2.The applicant pay the first and second respondents’ costs of and incidental to the proceeding, including reserved costs, save and except the costs of the first and second respondents in relation to the issue of an agreement of compromise. The costs of the first and second respondents are to be taxed on a party and party basis up until 19 September 1999. The applicant pay the costs of the first and second respondents subsequent to that date, on the basis that such costs are to include all costs except insofar as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, the first and second respondents will be completely indemnified by the applicant for their costs.
3.The first and second respondents pay the third respondent’s costs of and incidental to the proceeding, including reserved costs if any, to be paid on a party and party basis.
Note: Settlement and entry…
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- Case
- [2003] FCA 1086
- Decision Date
CaseChat Overview and Summary
The key legal issue before the court was whether the applicant, having rejected an offer of compromise made by the respondents, was entitled to any costs when it failed to secure a judgment more favourable than the terms of the offer. The court had to navigate the interplay between the provisions of O 23 r 11(5) of the Uniform Civil Procedure Rules 1999 (NSW) and the common law principles concerning Calderbank offers. The court considered the principles established in Calderbank v Calderbank and the relevant commentary on the absence of a comprehensive rule addressing the situation where an applicant rejects an offer and subsequently fails to establish liability.
Weinberg J concluded that the correct approach was to rely on the observations made by Wilcox J in Coshott v Learoyd, which emphasized the distinction between O 23 offers and Calderbank offers. The court determined that the rejection of a respondent’s offer and the applicant's subsequent failure to secure a more favourable judgment warranted a specific costs order. The court found that the respondents were entitled to costs on an indemnity basis from the date of the rejected offer, with certain exceptions for unreasonable costs or those incurred unreasonably.
Following the court's reasoning, Weinberg J made specific orders concerning the costs to be paid by the parties. The applicant was ordered to pay the costs of the first and second respondents up until a specified date on a party-and-party basis, and thereafter on an indemnity basis, except for any unreasonable costs. Additionally, the first and second respondents were ordered to pay the costs of the third respondent on a party-and-party basis. The court's decision provided a clear framework for the distribution of costs in light of the unsuccessful application and the rejected offer of compromise.
Orders
Orders of the court
1. The proceeding against the first, second and third respondents be dismissed.
2. The applicant pay the first and second respondents’ costs of and incidental to the proceeding, including reserved costs, save and except the costs of the first and second respondents in relation to the issue of an agreement of compromise. The costs of the first and second respondents are to be taxed on a party and party basis up until 19 September 1999. The applicant pay the costs of the first and second respondents subsequent to that date, on the basis that such costs are to include all costs except insofar as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, the first and second respondents will be completely indemnified by the applicant for their costs.
3. The first and second respondents pay the third respondent’s costs of and incidental to the proceeding, including reserved costs if any, to be paid on a party and party basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: SPENDER J
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