First Mortgage Capital Pty Ltd v Westpac Banking Corporation Ltd (No 2)

The dispute between First Mortgage Capital Pty Ltd, the plaintiff, and Westpac Banking Corporation Ltd, the first defendant, along with two cross-claimants, was adjudicated in the Federal Court of Australia. The plaintiff sought costs against the first defendant and the cross-claimants, arguing that the first defendant had filed a submitting appearance. The plaintiff contended that since there was no clearly successful party between itself and the cross-claimants, the first defendant should bear the costs. The cross-claimants, on the other hand, resisted the plaintiff's application, arguing that their positions warranted consideration in the cost assessment.

The central legal issue before the court was whether the plaintiff was entitled to costs against the first defendant and the cross-claimants. Specifically, the court had to determine if the filing of a submitting appearance by the first defendant justified the plaintiff's entitlement to costs, and if there was a clearly successful party between the plaintiff and the cross-claimants. Additionally, the court considered whether there was any point of principle that should influence the cost decision in this case.

The court ruled that the plaintiff was not entitled to costs against the first defendant and the cross-claimants. The reasoning was that a submitting appearance did not necessarily mean that the first defendant was at fault or that there was a clearly successful party. The court found that the absence of a clearly successful party between the plaintiff and the cross-claimants did not establish a point of principle that would warrant costs against the first defendant. Consequently, the plaintiff's application for costs was dismissed.