Grey v Mango Pre Paid Calling Cards Pty Ltd

FEDERAL COURT OF AUSTRALIA

Grey v Mango Pre Paid Calling Cards Pty Ltd [2005] FCA 362

Federal Court of Australia Act 1976 (Cth), s 43(2)

Donald Campbell & Co Ltd v Pollack [1927] AC 732 cited
Ruddock v Vadarlis (2001) 115 FCR 229 cited
Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129 cited
Hifu Electronics Pty Ltd v Fujian Pacific Pty Ltd [1998] FCA 1730 cited

JOHN GREY, ANGELA GREY, JEREMY GREY and LINDA GREY v MANGO PRE PAID CALLING CARDS PTY LTD, SUSAN VIAL, NICHOLAS RHODIN and FRANKLYN ERNEST YATES
WAD 31 of 2004

NICHOLSON J
6 APRIL 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 31 OF 2004

BETWEEN:

JOHN GREY, ANGELA GREY, JEREMY GREY AND
LINDA GREY
APPLICANTS

AND:

MANGO PRE PAID CALLING CARDS PTY LTD
(ACN 104 386 932)
FIRST RESPONDENT

SUSAN VIAL
SECOND RESPONDENT

NICHOLAS RHODIN
THIRD RESPONDENT

FRANKLYN ERNEST YATES
FOURTH RESPONDENT

JUDGE:

NICHOLSON J

DATE OF ORDER:

6 APRIL 2005

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The first respondent pay the applicants’ costs up to the hearing of the application to set aside the judgment in default.

2.The applicants pay the first respondent’s costs of the application to set aside the default judgment including the hearing of 22 July 2004 and subsequently to the date of judgment.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 31 OF 2004

BETWEEN:

JOHN GREY, ANGELA GREY, JEREMY GREY AND
LINDA GREY
APPLICANT

AND:

MANGO PRE PAID CALLING CARDS PTY LTD
(ACN 104 386 932)
FIRST RESPONDENT

SUSAN VIAL
SECOND RESPONDENT

NICHOLAS RHODIN
THIRD RESPONDENT

FRANKLYN ERNEST YATES
FOURTH RESPONDENT

JUDGE:	NICHOLSON J
DATE:	6 APRIL 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. These reasons relate to costs arising out of the judgment of 17 December 2004 (Grey v Mango Pre Paid Calling Cards Pty Ltd [2004] FCA 1664), whereby the first respondent successfully set aside a judgment in default of appearance against it obtained by the applicants.

2. The applicants submit this is an instance in which costs should not follow the event and seek costs of the motion to set aside the default judgment in any event.  The first respondent seeks the usual costs order; that is, the applicants pay the first respondent’s costs of the motion. 

3. The circumstances which resulted in the default judgment being entered against the first respondent are set out in my reasons of 17 December 2004 at [7]-[21].

4. The parties do not dispute that the Court’s discretion to order costs is at large:  Federal Court of Australia Act 1976 (Cth), s 43(2). The discretion is unfettered, save only that it be exercised judicially and not be exercised against the successful party except for some reason connected with the case: Donald Campbell & Co Ltd v Pollack [1927] AC 732 at 811-812; Ruddock v Vadarlis (2001) 115 FCR…