FEDERAL COURT OF AUSTRALIA
Frigger v Kitay (Liquidator) (No 3) [2020] FCA 861
File number: WAD 549 of 2019 Judge: COLVIN J Date of judgment: 19 June 2020 Catchwords: COSTS - application for costs to be assessed on lump sum basis - where costs orders previously made - application allowed Legislation: Federal Court of Australia Act 1976 (Cth) s 43
Federal Court Rules 2011 (Cth) r 40.02
Cases cited: Australia and New Zealand Banking Group Ltd v Paciocco [2015] FCAFC 78
Beach Petroleum NL & Claremont Petroleum NL v Johnson (No 2) [1995] FCA 350; (1995) 57 FCR 119
Eat Media Pty Ltd v Mulready Media Pty Ltd (No 2) [2010] FCA 392
LFDB v MS S M (No 2) [2018] FCA 2062
Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; (2017) 253 FCR 403
Royal v El Ali (No 3) [2016] FCA 1573
Vantage Holdings Pty Ltd v Huang (No 2) [2015] FCA 185; (2015) 232 FCR 556
Date of hearing: Determined on the papers Date of last submissions: 12 June 2020 (Plaintiff)
11 June 2020 (Defendant)Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 15 Counsel for the Plaintiff: The Plaintiff appeared in person Counsel for the Defendant: Mr DA Lenhoff Solicitor for the Defendant: Lenhoff & Hotz ORDERS
WAD 549 of 2019 BETWEEN: ANGELA CECILIA THERESA FRIGGER
Plaintiff
AND: MERVYN JONATHAN KITAY IN HIS CAPACITY AS LIQUIDATOR OF COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQ) (ACN 009 470 491)
Defendant
JUDGE:
COLVIN J
DATE OF ORDER:
19 JUNE 2020
THE COURT ORDERS THAT:
1.The defendant's application for orders for costs to be assessed on a lump sum basis be allowed.
2.The plaintiff do pay the defendant's costs of the defendant's application for costs to be assessed on a lump sum basis.
3.The costs ordered on 15 April 2020, 26 May 2020 and by order 2 of these orders are to be assessed on a lump sum basis if not agreed.
4.If it is necessary to assess costs then:
(a)the defendant may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);
(b)within 14 days of service of the Costs Summary the plaintiff do file and serve any costs proposal in accordance with GPN-COSTS; and
(c)if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum on the papers and determination of the date by which the costs as assessed shall be payable.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
The substantive application by Mrs Frigger in these proceedings was dismissed. Pursuant to…
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- AGLC
- Frigger v Kitay (Liquidator) (No 3) [2020] FCA 861
- Case
- [2020] FCA 861
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the costs should be assessed on a lump sum basis, as requested by the defendant, and if so, how this should be reconciled with the previous costs orders. The court considered the relevant procedural rules and practice notes, including the Federal Court's Cost Practice Note (GPN-COSTS). The court also needed to decide whether the plaintiff should bear the costs of the defendant's application for lump sum assessment and how the costs should be assessed if necessary.
The court held that the application for costs to be assessed on a lump sum basis should be allowed. The reasoning was based on the flexibility and efficiency of lump sum assessments as outlined in the Court's Cost Practice Note. The court noted that such assessments could simplify the cost recovery process and avoid protracted disputes over individual cost items. Additionally, the court found that the plaintiff should bear the costs of the defendant's application, as the request for lump sum assessment was reasonable and aligned with established practices. The court also detailed the procedures for assessing costs if necessary, including the filing of a Costs Summary and the potential referral to a Registrar for a determination of the lump sum figure.
The orders made by the court mandated that the defendant's application for lump sum assessment of costs be allowed. The plaintiff was required to pay the defendant's costs for the application. Furthermore, the court specified that any costs ordered on previous dates should be assessed on a lump sum basis if not agreed upon by the parties. The orders also outlined the procedural steps for cost assessment, including the filing of a Costs Summary and the potential referral to a Registrar for determination of the lump sum. This structured approach aimed to ensure clarity and fairness in the cost recovery process.
Orders
Orders of the court
1. The defendant's application for orders for costs to be assessed on a lump sum basis be allowed.
2. The plaintiff do pay the defendant's costs of the defendant's application for costs to be assessed on a lump sum basis.
3. The costs ordered on 15 April 2020, 26 May 2020 and by order 2 of these orders are to be assessed on a lump sum basis if not agreed.
4. If it is necessary to assess costs then:
(a) the defendant may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);
(b) within 14 days of service of the Costs Summary the plaintiff do file and serve any costs proposal in accordance with GPN-COSTS; and
(c) if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum on the papers and determination of the date by which the costs as assessed shall be payable.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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