Fire Containment Pty Ltd v Robins (No 2) - [2011] NSWSC 547

Supreme Court

New South Wales

Medium Neutral Citation: Fire Containment Pty Ltd v Robins (No 2) [2011] NSWSC 547
Hearing dates: 6 June 2011
Decision date: 10 June 2011
Jurisdiction: Equity Division
Before: Gzell J
Decision:
No order as to costs.

Catchwords: PROCEDURE - Costs - acceptance by plaintiff of undertakings and abandonment of claims for damages or an account of profits - no hearing on the merits - no conduct by defendants so unreasonable as to justify an order for costs
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Trade Practices Act 1974 (Cth)
Cases Cited: Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 401; (1993) 44 FCR 194
JT Stratford & Son Ltd v Lindley (No 2) [1969] 1 WLR 1547; [1969] 3 All ER 1122
Re The Minister for Immigration and Ethnic Affairs Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Nauru Phosphate Royalties Trust (Rec & Mgr Apptd) v Wily [2011] NSWSC 281
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216
Fire Containment Pty Ltd v Robins [2011] NSWSC 533
Category: Costs
Parties: Fire Containment Pty Ltd (Plaintiff)
Peter Robins (First Defendant)
Mark Prior (Second Defendant)
Trafalgar Fire & Safety Pty Ltd (Third Defendant)
Trafalgar Passive Fire Solutions Pty Ltd (Fourth Defendant)
Representation: Counsel
M Painter/S Nash (Plaintiff)
C Leggat SC/B Nolan (Defendants)
Solicitors
Adams & Partners Lawyers (Plaintiff)
Tiernan Lawyers (Defendants)

File Number(s): 2009/289828

Judgment

Following the Plaintiff's acceptance of undertakings proffered by the Defendants that they would cease to use the word "Trafalgar" in the conduct of their business and the abandonment of the claims for damages or an account of profits, Ms Painter who with Mr Nash appeared for the Plaintiff, sought an order for costs on an indemnity basis.

The Civil Procedure Act 2005, s 98 provides that subject to rules of court costs are in the discretion of the court; the court has full power to determine by whom, to whom and to what extent costs are to be paid; and the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

The Uniform Civil Procedure Rules 2005, Pt 42 r 42.1 provides that if the court makes any order as to costs it is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

Ms Painter's submission was a simple one: the event was the acceptance of the undertakings, the plaintiff was successful in that event and the plaintiff should have its costs. The costs should be awarded on an indemnity basis because by letter dated 24 May 2011 the Plaintiff offered that the Defendants do all things necessary to relinquish the use of the name "Trafalgar"; that the parties mutually agree the form of a press release; that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 547
Decision Date: 10 June 2011

CaseChat Overview and Summary

In the Federal Circuit Court, Fire Containment Pty Ltd sought a declaration that Robins had breached their contract by engaging in activities detrimental to the company's interests. The case also involved claims for damages and an account of profits. The proceedings were settled with the defendants providing undertakings to perform certain actions, and the plaintiff accepting these undertakings and abandoning its claims for damages and an account of profits. The plaintiff then sought costs from the defendants, arguing that their conduct had been unreasonable.

The court considered whether the defendants' conduct was unreasonable enough to justify an order for costs, given that there had been no hearing on the merits and no conduct by the defendants that was so unreasonable as to warrant such an order. The court examined the circumstances of the settlement, the nature of the undertakings, and whether the defendants had acted unreasonably in the context of the settlement.

The court found that there had been no unreasonable conduct by the defendants. It was noted that the settlement was reached amicably, and the undertakings provided by the defendants were sufficient to resolve the dispute. The court held that in the absence of a hearing on the merits and given the nature of the settlement, there was no basis for an order for costs against the defendants.

The court dismissed the plaintiff's application for costs, noting that the circumstances did not warrant such an order. The defendants were not required to pay any costs to the plaintiff.

Orders