FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fu v Bondi Junction Prime Pty Ltd (No 2) [2024] FedCFamC2G 979
File number(s): SYG 3407 of 2018 Judgment of: JUDGE GOODCHILD Date of judgment: 2 October 2024 Catchwords: CONSUMER LAW – COSTS – indemnity costs sought by respondents – costs awarded in accordance with Part 1 of Schedule 2 of the Rules – cross-claimants entitlement to interest pursuant to Contract of Sale – claim made for agent’s commission on resale – STAY – stay granted. Legislation: Australian Consumer Law.
Civil Dispute Resolution Act 2011 (Cth).
Corporations Act 2001 (Cth), s.601AA.
Federal Circuit and Family Court of Australia Act 2021 (Cth, ss.5, 190, 214.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr.1.07, 22.02, 22.09, 25.04, Schedule 2.
Conveyancing Act 1919 (NSW), ss.55, 37A.
Cases cited: Fu v Bondi Junction Prime Pty Ltd [2024] FedCFamC2G 513
Galafassi v Kelly (2014) 87 NSWLR 119
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
Zografakis v McCarthy (2007) 13 BPR 24,365; (2007) NSW ConvR 56-176; [2007] NSWSC 144
Division: Division 2 General Federal Law Number of paragraphs: 100 Date of last submission/s: 16 August 2024 Date of hearing: 16 August 2024 Place: Brisbane Counsel for the Applicant: Mr Ireland KC Solicitor for the Applicant: D C Balong & Associates Solicitor for the Respondents: StevensVuaran Lawyers ORDERS
SYG 3407 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHAO BIN FU
Applicant
AND: BONDI JUNCTION PRIME PTY LTD ACN 161 139 564
First Respondent
PARK COAST REALTY PTY LTD ACN 113 531 098
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
2 OCTOBER 2024
THE COURT ORDERS:
1.That the first respondent/cross-claimant is entitled to interest on $160,000 at Federal Court of Australia rates calculated from 6 December 2018 until the date of these Orders.
2.That the applicant pay to the cross-claimant the sum of $140,482.22 representing the loss on resale of Apartment 1103, including interest.
3.That the applicant pay to the cross-claimant the sum of $32,252.87 representing the agent’s commission on resale of Apartment 1103, including interest.
4.That the applicant pay to the cross claimant the sum of $2,084.66 representing legal fees of AMW Lawyers, including interest.
5.That the applicant pay to the cross claimant the sum of $304.39 representing legal fees of AMW Lawyers, including interest.
6.That the applicant pay the costs of the first respondent in accordance with Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
7.That the applicant pay the costs of the second respondent in accordance with Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) up to the time of the Deed of Indemnity.
8.That the declaration made on 6 June 2024 that the first respondent/cross-claimant is entitled…
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- Case
- [2024] FedCFamC2G 979
- Decision Date
CaseChat Overview and Summary
The court's reasoning focused on the objectives of the FCFCA Act, particularly section 190, which directs the court to facilitate the just, quick, and cost-effective resolution of disputes. The court highlighted the overarching purpose of achieving just determination and efficient use of judicial resources. It emphasised that the fundamental purpose of a costs order is to compensate the successful party, and generally, costs should follow the event unless there is a good reason otherwise. The court noted that the case was not complex, progressed without undue delay, and the submissions made by the parties were appropriate and economical. Given these factors, the court concluded that the amounts provided in Part 1 of Schedule 2 to the Rules would likely represent a fair indemnity for the costs incurred.
Ultimately, the court decided against awarding indemnity costs beyond what is stipulated in Part 1 of Schedule 2 to the Rules, finding no compelling reason to deviate from this standard approach. The court also granted a stay in relation to certain aspects of the proceedings, further detailing the procedural aspects of the case. The final orders reflect the court's decision on costs and the grant of the stay, ensuring that the resolution of the dispute aligns with the principles of efficiency and fairness.
Orders
Orders of the court
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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
The first respondent invites the Court to reject that submission by the applicant pointing to some issue which was critical to the resolution of the case arising after the date on which the offer was made. The first respondent points out that by August 2021 the applicant’s evidence and the evidence of Mr Felix Milgrom had been filed. The applicant was aware by this time that he was attempting to run an oral representation case that had been made in language in which he was not proficient. The first respondent contends that an analysis of the Reasons for Judgment, the reasons why the applicant was ultimately unsuccessful, or all matters which were known, or should have been known, to the applicant well before August 2021.Consideration Section 190 of the FCFCA Act provides a directive to the Court, in the application of its practice and procedure, to facilitate the just resolution of disputes “according to law and as quickly, inexpensively and efficiently as possible”. This reflects the objects of the FCFCOA Act as contained in s.5 and is referred to as the court’s “overarching purpose”. Section 190(2) of the FCFCOA Act provides that the court’s “overarching purpose” includes the following objectives:(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;(c)the efficient disposal of the Court’s overall caseload;(d)the disposal of all proceedings in a timely manner;(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. The fundamental purpose of a costs order is to compensate a successful party, rather than punish an unsuccessful party. In the absence of good reason to the contrary, generally, a successful litigant should receive their costs. This is reflected in the general rule that costs follow the event. The principle applicable in any consideration of an award of costs is that the party that is successful be permitted to recover so much of its costs as are reasonably incurred. The just resolution of disputes does not necessarily require that a successful party recover all of its costs and disbursements. Awards of costs even on an indemnity basis do not always fully compensate a party. None of the rules referred to above are expressed in mandatory terms and it is within the discretion of the Court to determine the mechanism for the assessment of costs in any given case paying due regard to the objectives and overarching purpose of the FCFCOA Act. I do not consider this case to be an appropriate one where I exercise my discretion to order costs otherwise than in accordance with Part 1 of Schedule 2 to the Rules. The matter proceeded to hearing, Counsel was retained, oral and written submissions were advanced on behalf of the parties in an appropriate and economical manner. There is nothing to suggest that the amounts provided in Part 1 of Schedule 2 to the Rules would not be likely to represent a fair indemnity. The matter was not a complex matter, it progressed steadily, without delay, over two days including oral addresses.