Financial Integrity Group Pty Ltd v Farmer (No 5)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Financial Integrity Group Pty Ltd v Farmer (No 5)

Citation:

[2014] ACTSC 194

Hearing Date(s):

On the papers

DecisionDate:

13 August 2014

Before:

Refshauge J

Decision:

The Court Orders that:

1. Orders 2 and 4 of the orders made on 16 June 2014 be withdrawn and the following orders substituted for them:

         2.      The plaintiff pay the defendants’ costs on a party and party basis up to and including 28 July 2010.

         4.      Otherwise the defendants pay the plaintiff’s costs on a party and party basis from 29 July 2010 to judgment.

Category:

Principal Judgment

Catchwords:

PROCEDURE – Supreme Court procedure – judgments and orders – amendment – “slip rule”

Legislation Cited:

Court Procedures Rules 2006 (ACT), r 6906

Cases Cited:

Bakovski v Lenehan (No 2) [2014] NSWSC 739
Calderbank v Calderbank [1976] Fam 93
Financial Integrity Group Pty Ltd v Farmer (No 3) [2014] ACTSC 75
Financial Integrity Group Pty Ltd v Farmer (No 4) [2014] ACTSC 145
Polon v Dorian(No 3) [2014] NSWSC 740

Texts Cited:

G E Dal Pont Law of Costs (2^nd ed, 2009, LexisNexis Butterworths:  Sydney)
John Tarrant, Amending Final Judgments Orders (2010, The Federation Press: Sydney)

Parties:

Financial Integrity Group Pty Ltd ( Plaintiff)

Scott Farmer ( 1st Defendant)

Bravium Pty Limited (2nd Defendant)

Representation:

Solicitors

Somerville Legal ( Plaintiff)

Bradley Allen (Defendants)

File Number(s):

SC 589 of 2007

REFSHAUGE J:

1. On 16 June 2014, I made the following orders:

1.    Order 1 of the orders made on 1 May 2014 be amended by omitting “$8,720.00” and substituting “$5,756.36”.

2.    The plaintiff pay the defendant’s costs on a party and party basis up to and including 28 April 2010.

3.    Each party pay their own costs of the submissions made in response to the order made on 13 August 2013.

4.    Otherwise, the defendants pay the plaintiff’s costs on a party and party basis from 29 April 2010 to judgment.

See Financial Integrity Group Pty Ltd v Farmer (No 4) [2014] ACTSC 145.

1. The decision was required so as to address the issue of costs as well as to make an amendment to the original order I had made as to the damages payable under the usual undertaking as to damages made to accompany an interim injunction which I subsequently discharged as having not been properly made.  See Financial Integrity Group Pty Ltd v Farmer (No 3) [2014] ACTSC 75 at [12].

1. Orders 2 and 4 were made because of the effect of a letter sent by the plaintiff’s lawyers to the defendant’s lawyers making an offer of compromise in accordance with the principles of Calderbank v Calderbank [1976] Fam 93. I found that the refusal of the defendants to accept the offer of compromise contained in the letter was unreasonable and that the plaintiff was, therefore, entitled to costs from the date when the defendants failed to accept the offer.

1. The letter was dated 14 July 2010 and the offer…