Gerring Pty Ltd v Mostert, Louis Lindes and Anor Mostert, Louis Lindes and Anor v Kyle and Anor

[1998] FCA 897

FEDERAL COURT OF AUSTRALIA

PROCEDURE - costs - costs follow the event - no question of principle

GERRING PTY LTD (ACN 009 105 926) v LOUIS LINDES MOSTERT & ANOR

AND BY CROSS-CLAIM

LOUIS LINDES MOSTERT & ANOR v KYLE & ANOR

R D NICHOLSON J
PERTH

31 JULY 1998

NO QUESTION OF PRINCIPLE

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 3059 of 1995

BETWEEN:

GERRING PTY LTD (ACN 009 105 926)
Applicant

AND:

LOUIS LINDES MOSTERT
First Respondent

SUSANNA MARIA MOSTERT
Second Respondent

BY CROSS‑CLAIM:

LOUIS LINDES MOSTERT
Cross Claimant

AND:

SUSANNA MARIA MOSTERT
Second Cross-Claimant

AND:

PETER ARTHUR KYLE
First Cross-Respondent

GERRING PTY LTD (ACN 009 105 926)
Second Cross-Respondent

JUDGE:	R D NICHOLSON J
DATE OF ORDER:	31 JULY 1998
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The cross-claimants pay the first cross-respondent’s costs of 20 October 1997 and 3    November 1997 relating to the first cross-respondent’s motion to dismiss or stay the          cross-claim.

1. Save that the first cross-respondent pay the cross-claimant’s costs of the hearing of 16 June 1998 in any event, the costs incurred and thrown away by the further re-         amendment to the cross-claim and the costs of any consequent amendment to the        defences to cross-claim be the first cross-respondent’s in any event.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NO QUESTION OF PRINCIPLE

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 3059 of 1995

BETWEEN:

GERRING PTY LTD (ACN 009 105 926)
Applicant

AND:

LOUIS LINDES MOSTERT
First Respondent

SUSANNA MARIA MOSTERT
Second Respondent

BY CROSS‑CLAIM:

LOUIS LINDES MOSTERT
Cross Claimant

AND:

SUSANNA MARIA MOSTERT
Second Cross-Claimant

AND:

PETER ARTHUR KYLE
First Cross-Respondent

GERRING PTY LTD (ACN 009 105 926)
Second Cross-Respondent

JUDGE:	R D NICHOLSON J
DATE:	31 JULY 1998
PLACE:	PERTH

REASONS FOR JUDGMENT

HIS HONOUR:  In this matter the cross-claimants sought leave pursuant to O 13 r 2 of the Federal Court Rules (“FCR”) to further re-amend their cross-claim.  In reasons previously published I concluded such leave should be given and reserved the question of costs for written submissions by counsel.  I now give my reasons in relation to costs.

There have been a number of previous hearing dates in relation to the cross-claim generally.  The dates of those hearings and the orders made as to costs are as follows.

At a directions hearing on 20 October 1997 the costs of that day were reserved.  On 3 November 1997 a number of motions were dealt with.  Relevantly, one of those was the first cross-respondent’s motion to dismiss or stay the cross-claim (“the first cross-respondent’s motion”).  A second was the cross-claimants motion for leave to cross-claim against the first cross-respondent (“the cross-claimant’s motion”).  Judgment on the two motions was given on 10 November 1998.  Whilst the first cross-respondent’s motion was not allowed, he was substantially successful in that the cross-claim required amendment before it could proceed.  In the event the cross-claim proceeded (which it did), the cross-claimant’s were given leave to amend the cross-claim, with costs being in the cause.

At a directions hearing on 5 December 1997 the cross-claimants were given leave generally to further re-amend the cross-claim with the matter set down for argument on 5 February 1998.  The cross-claimants were ordered to pay the cross-respondent’s costs of appearance.  The directions on 5 February 1998 were adjourned until 27 February 1998 with the costs of that day being the cross-respondent’s in any event and the costs of the principal application reserved.  There was no order as to costs at the directions hearing listed for 27 February 1998 as it was adjourned by consent.  The cross-claimant’s leave application was eventually heard on 16 June 1998 and the question of costs generally reserved.

Accordingly, the only hearings of which the costs have not been determined are those of 20 October 1997, the first cross-respondent’s motion heard on 3 November 1997 and the substantive hearing on 16 June 1998.

I have received written submissions from each counsel.  I do not propose to address them in detail.  It will suffice to say I accept the first cross-respondent’s submissions regarding the costs of 20 October and 3 November 1997.  In relation to the costs of 16 June 1998 I accept the submissions of the cross-claimants.  Accordingly, I will make the following orders:

1. The cross-claimants pay the first cross-respondent’s costs of 20 October 1997 and 3    November 1997 relating to the first cross-respondent’s motion to dismiss or stay the          cross-claim.

1. Save that the first cross-respondent pay the cross-claimant’s costs of the hearing of 16 June 1998 in any event, the costs incurred and thrown away by the further re-         amendment to the cross-claim and the costs of any consequent amendment to the        defences to cross-claim be the first cross-respondent’s in any event.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson

Associate:

Dated:             31 July 1998

Counsel for the Applicant:	N W McKerracher QC with N J Rohr
Solicitor for the Applicant:	Clayton Utz (at time of application)
Counsel for the Respondent:	G I Macnish
Solicitor for the Respondent:	Cocks Macnish
Date of last written submission:	24 July 1998
Date of Judgment:	31 July 1998