Fruit Connect Aktiebolaget v A.C.N. 620 988 936 and Anor (No.2)

[2019] FCCA 3165

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRUIT CONNECT AKTIEBOLAGET v A.C.N. 620 988 936 & ANOR (No.2) [2019] FCCA 3165

Catchwords:
PRACTICE AND PROCEDURE – Application for costs on an indemnity basis – appropriate case in which to make an order for costs on an indemnity basis.

Applicant: FRUIT CONNECT AKTIEBOLAGET

First Respondent: A.C.N. 620 988 936

Second Respondent: KOTOB

File Number: SYG 675 of 2019

Judgment of: Judge Street

Hearing date: 4 October 2019

Date of Last Submission: 4 October 2019

Delivered at: Sydney

Delivered on: 4 October 2019

REPRESENTATION

Counsel for the Applicant: Ms B Nolan

Solicitors for the Applicant: JHK Legal

Solicitors for the Respondents: Mr J Boyle
Boyle Associates Solicitors & Barristers

ORDERS

1. The application in a case filed on 14 August 2019 is dismissed.

2. The second defendant, Fatme El Kotob, is removed as being a party to the proceedings.

3. The plaintiff pay the defendant’s and the removed party’s costs of the application in a case filed on 14 August 2019 on an indemnity basis in an amount to be fixed in due course.

4. Direct the defendant to file and serve within 30 days an affidavit identifying the costs sought to be recovered on the indemnity costs order which the Court will fix at a convenient time to the Court after hearing further from the plaintiff.

5. Direct the plaintiff to file and serve any affidavit in answer on the indemnity costs within 30 days of service of the defendant’s affidavit.

6. The matter is fixed for final hearing at 10:00am on 31 March 2020.

7. Direct the plaintiff to file and serve a further amended statement of claim within 30 days.

8. Direct the defendant to file and serve a defence to the further amended statement of claim within 30 days of service of the further amended statement of claim.

9. Direct the plaintiff to file and serve any affidavit evidence on which they wish to rely on or before 31 January 2020.

10. Direct the defendant to file and serve any affidavit evidence on which they wish to rely on or before 29 February 2020

11. Direct the plaintiff to file and serve any affidavit evidence in reply on or before 21 March 2020.

12. Direct the plaintiff to file and serve an outline of submissions, chronology and list of objections on or before 14 March 2020.

13. Direct the defendant to file and serve an outline of submissions, chronology and list of objections on or before 21 March 2020.

14. Liberty to apply on 2 days notice.

15. Direct that any application for security costs must be filed and served within 14 days and if any such application is filed the parties are expected to comply with the Courts above orders. The plaintiff has liberty to file and serve any affidavit in answer on the issue of security costs if such an application arises. The Court will hear any such application for security costs at 9:30am on 13 December 2019.

NOTES

1. Cross examination will be limited to half an hour without further leave.

2. Oral submissions will be limited to half an hour without further leave.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 675 of 2019

FRUIT CONNECT AKTIEBOLAGET

Applicant

And

A.C.N. 620 988 936

First Respondent

KOTOB

Second Respondent

REASONS FOR JUDGMENT

1. These are proceedings in which the Court has dismissed an application in the case and the defendant has asked for costs on indemnity basis. The ordinary rule is that costs follow the event and the defendant would be entitled to costs of the application in the case on a party/party basis. In order to depart from that rule, the Court must satisfied that the plaintiff has unreasonably caused the defendants to incur costs. 

2. In the present case, the plaintiff’s own conduct after the purported agreement on 24 June 2019, reflected in the sending of a communication that made crystal clear the plaintiff itself did not regard there had been put in place a binding agreement. The communications did not support a case of there being a settlement agreement. 

3. The Court does regard this as a case in which the contention that there is a binding settlement agreement where the plaintiff itself had continued after the relevant date to put other offers as being unreasonable. The Court is satisfied this is an appropriate case in which to make an order for costs on an indemnity basis. 

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  12 November 2019