Fortrend Securities Pty Ltd v Wollermann (No 3)

FEDERAL COURT OF AUSTRALIA

Fortrend Securities Pty Ltd v Wollermann (No 3) [2025] FCA 444

File number(s):

VID 38 of 2023

Judgment of:

O’CALLAGHAN J

Date of judgment:

6 May 2025

Catchwords:

COSTS – where respondents were entirely successful following 15-day trial – where respondents previously made two offers to settle the proceeding by which respondents would have paid to applicants substantial sums of money and their costs – where both offers not accepted – whether offers unreasonably refused – held: applicants liable to pay respondents’ costs on a party-party basis up to a date determined under r 25.14(2) of the Federal Court Rules 2011 (Cth) by reference to the date of the first offer and thereafter on an indemnity basis

Legislation:

Corporations Act 2001 (Cth) ss 182(1) and 183(1)

Federal Court of Australia Act 1976 (Cth) s 43

Federal Court Rules 2011 (Cth) Pt 25, r 25.14(2)

Cases cited:

Anchorage Capital Partners Pty Limited v ACPA Pty Ltd (No 2) [2018] FCAFC 112

Fortrend Securities Pty Ltd v Wollermann (No 2) [2025] FCA 96

Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151

Division:

General Division

Registry:

Victoria

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs:

42

Date of last submission/s:

13 March 2025

Date of hearing:

Determined on the papers

Solicitor for the Applicants:

Cornwalls

Counsel for the Respondents:

P Crutchfield KC and L Merrick KC with T Burn-Francis

Solicitor for the Respondents:

Seyfarth Shaw

ORDERS

VID 38 of 2023

BETWEEN:

FORTREND SECURITIES PTY LTD ACN 055 702 693

First Applicant

JOSEPH BURKE FORSTER
Second Applicant

FORTREND SECURITIES INC
Third Applicant

AND:

CHRISTOPHER JAMES WOLLERMANN

First Respondent

STEPHEN MATTHEW LYLE
Second Respondent

SHAW AND PARTNERS LIMITED
Third Respondent

LWAM PTY LTD
Fourth Respondent

ALTA VIA PTY LTD
Fifth Respondent

GROLLA PTY LTD
Sixth Respondent

ORDER MADE BY:	O’CALLAGHAN J
DATE OF ORDER:	6 MAY 2025

THE COURT ORDERS THAT:

1.The applicants pay the respondents’ costs of the proceeding:

(a)before 11am on 3 October 2023 — on a party and party basis; and

(b)thereafter — on an indemnity basis.

2.The costs in order 1 be paid as a lump sum.

3.The calculation of the lump sum be referred to a registrar of this court to fix the amount of the lump sum payable, and:

(a)within 28 days of the date of this order, the respondents file and serve any costs summary and submissions in accordance with the Costs Practice Note (GPN-COSTS);

(b)within 28 days of service of the respondents’ costs summary and submissions, the applicants file and serve any costs response and submissions in accordance with the Costs Practice Note; and

(c)pursuant to r 1.37 of the Federal Court Rules 2011 (Cth), the registrar determine the quantum of costs in any referred costs dispute in such manner as they think fit (including, if thought appropriate, on the papers) and, within two weeks of the making of the determination, make orders for the payment of the amounts…