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Franks v Warringah Council

Franks v Warringah Council

Case [2003] FCA 1254 7 November 2003

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FEDERAL COURT OF AUSTRALIA
Franks v Warringah Council, in the matter of Franks [2003] FCA 1254
COSTS – indemnity costs – offer of compromise – application to set aside bankruptcy notices - whether the applicant’s offer to consent to the setting aside the notices with costs is an offer of compromise.
Federal Court of Australia Act 1976 (Cth) s 43
Federal Court Rules O 23 r 2
Australian Competition & Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) ATPR 41-862 cited
Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 referred to
Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353 referred to
Vasram v AMP Life Ltd [2002] FCA 1286 cited
PHILLIP MAURICE FRANKS v WARRINGAH COUNCIL IN THE MATTER OF PHILLIP MAURICE FRANKS
N 7022 of 2003
N 7023 of 2003
N 7024 of 2003
BRANSON J
7 NOVEMBER 2003
CANBERRA (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 7022 of 2003

IN THE MATTER OF PHILLIP MAURICE FRANKS

BETWEEN:

PHILLIP MAURICE FRANKS
APPLICANT

AND:

WARRINGAH COUNCIL
RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

7 NOVEMBER 2003

WHERE MADE:

CANBERRA (HEARD IN SYDNEY)

THE COURT ORDERS THAT the application for an order requiring the respondent to pay the applicant’s costs on an indemnity basis be refused.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 7023 of 2003

IN THE MATTER OF PHILLIP MAURICE FRANKS

BETWEEN:

PHILLIP MAURICE FRANKS
APPLICANT

AND:

WARRINGAH COUNCIL
RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

7 NOVEMBER 2003

WHERE MADE:

CANBERRA (HEARD IN SYDNEY)

THE COURT ORDERS THAT the application for an order requiring the respondent to pay the applicant’s costs on an indemnity basis be refused.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 7024 of 2003

IN THE MATTER OF PHILLIP MAURICE FRANKS

BETWEEN:

PHILLIP MAURICE FRANKS
APPLICANT

AND:

WARRINGAH COUNCIL
RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

7 NOVEMBER 2003

WHERE MADE:

CANBERRA (HEARD IN SYDNEY)

THE COURT ORDERS THAT the application for an order requiring the respondent to pay the applicant’s costs on an indemnity basis be refused.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 7022 of 2003
N 7023 of 2003
N 7024 of 2003

IN THE MATTER OF PHILLIP MAURICE FRANKS

BETWEEN:

PHILLIP MAURICE FRANKS
APPLICANT

AND:

WARRINGAH COUNCIL
RESPONDENT

JUDGE:

BRANSON J

DATE:

7 NOVEMBER 2003

PLACE:

CANBERRA (HEARD IN SYDNEY)

REASONS FOR JUDGMENT
INTRODUCTION

On 2 October 2003 I delivered reasons for judgment and pronounced orders in each of these matters. In each matter the bankruptcy notice was set aside and the respondent ordered to pay the applicant’s costs. Immediately thereafter counsel for the applicant indicated that his client wished to seek costs in each matter on an indemnity basis. As there was no appearance by the respondent at the delivery of judgment, I was unable to deal with the issue raised by the applicant at 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.

Continue reading Franks v Warringah Council

Details

AGLC: Franks v Warringah Council [2003] FCA 1254
Case: [2003] FCA 1254
Decision Date: 7 NOVEMBER 2003

CaseChat Overview and Summary

Phillip Maurice Franks applied to the Federal Court for an order setting aside bankruptcy notices issued by Warringah Council, and for an order that the Council pay his costs on an indemnity basis. The court had previously set aside the bankruptcy notices and ordered the Council to pay Franks' costs. Franks sought indemnity costs, claiming that a letter he sent to the Council constituted an offer of compromise under the Federal Court Rules, entitling him to such costs. The court had to determine whether Franks' letter was an offer of compromise and if it justified indemnity costs.

The court held that the letter sent by Franks was not an offer of compromise but an invitation for the Council to capitulate. It noted that the Federal Court Rules and the underlying policy aim to encourage sensible compromises in disputes. The court found that applications to set aside bankruptcy notices did not easily lend themselves to compromise, as Franks would typically need the order to avoid the commission of an act of bankruptcy, and the Council would risk little more than the notice being set aside. The court also held that the general rule for awarding costs on a party and party basis applied, and that the failure of the Council to accept Franks' invitation did not constitute a special or unusual feature warranting indemnity costs.

The application for indemnity costs was refused. The court did not make any order as to the costs of this application, as it believed the matter could have been dealt with on the original date of judgment had the Council been represented.

Orders