COSTS – application by respondents for an order that an unsuccessful applicant pay their costs on an indemnity basis – whether and, if so, how an offer by one party to litigation to the other, in the Calderbank form, made after the commencement of the trial and not accepted, is relevant to questions of costs where the offeree does not achieve at trial a result at least as favourable as the offer
COSTS – application by respondents for an order pursuant to FCR O 62 r 4(2)(c) that they be entitled, instead of to their taxed costs, to payment by the unsuccessful applicant of a specified gross sum – circumstances in which it will be appropriate for the Court to exercise its discretion to order the payment of a gross sum – method of calculation of the gross sum
ALBERT HADID v LENFEST COMMUNICATIONS INC AND GERRY LENFEST AND BAIN CAPITAL MARKETS LIMITED AND WAYNE BURT AND AUSTRALIS MEDIA LIMITED AND RODNEY PRICE
NG 36 OF 1995
LEHANE J 15 MAY 2000 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 36 OF 1995
BETWEEN:
ALBERT HADID Applicant
AND:
LENFEST COMMUNICATIONS INC First Respondent
GERRY LENFEST Second Respondent
BAIN CAPITAL MARKETS LIMITED Third Respondent
WAYNE BURT Fourth Respondent
AUSTRALIS MEDIA LIMITED Fifth Respondent
RODNEY PRICE Sixth Respondent
JUDGE:
LEHANE J
DATE OF ORDER:
15 MAY 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant pay the costs of the proceedings, other than the costs of the cross‑claim of the first and second respondents, of the first and second respondents:
(a)incurred up to and including 24 February 1998 – taxed or assessed on a party/party basis;
(b)incurred after 24 February 1998, on the basis that such costs are to include all costs except in so far as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, each of the first and second respondents will be completely indemnified by the applicant for its or his costs.
2.The applicant pay the costs of the proceedings of the third, fourth and sixth respondents:
(a)incurred up to and including 24 February 1998, on a party/party basis;
(b)incurred after 24 February 1998, on the basis that such costs are to include all costs except in so far as they are of an…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hadid v Lenfest Communications Inc [2000] FCA 628
Case
[2000] FCA 628
Decision Date
CaseChat Overview and Summary
The case of Hadid v Lenfest Communications Inc involved a dispute over the recovery of legal costs between the parties. The High Court was tasked with determining the appropriate method and extent of cost recovery for the respondents. The legal issues before the court included whether the costs incurred by the respondents were to be taxed on a party/party basis or fully indemnified by the applicant. Additionally, the court had to assess whether certain costs were reasonable and whether they were incurred reasonably.
In reaching its decision, the court considered the substantial differences between the party/party and indemnity estimates, noting that a greater discount was appropriate for the Bain respondents than for Mr. Price. The court decided that a 10% reduction in the fees and disbursements incurred after a specific date was appropriate, aligning with the higher end of the range suggested by Ms. Higinbotham. The total amount recoverable was then adjusted to reflect this reduction. The court concluded that the applicant should pay the costs of the proceedings for the respondents, with specific provisions for the costs incurred up to and after a certain date, and set precise amounts for the third and fourth respondents, as well as the sixth respondent, to be paid instead of their taxed costs.
The court’s final orders mandated that the applicant would bear the costs of the proceedings for the first and second respondents, as well as the third, fourth and sixth respondents, with specified amounts to be paid to the third, fourth and sixth respondents directly. Furthermore, the court ordered that the applicant should also cover the costs of the respective motions filed by the respondents.
Orders
Orders of the court
1. The applicant pay the costs of the proceedings, other than the costs of the cross‑claim of the first and second respondents, of the first and second respondents:
(a) incurred up to and including 24 February 1998 – taxed or assessed on a party/party basis;
(b) incurred after 24 February 1998, on the basis that such costs are to include all costs except in so far as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, each of the first and second respondents will be completely indemnified by the applicant for its or his costs.
2. The applicant pay the costs of the proceedings of the third, fourth and sixth respondents:
(a) incurred up to and including 24 February 1998, on a party/party basis;
(b) incurred after 24 February 1998, on the basis that such costs are to include all costs except in so far as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, each of the third, fourth and sixth respondents will be completely indemnified by the applicant for its or his costs.
3. Instead of their taxed costs, the third and fourth respondents shall be entitled to payment by the applicant of the sum of $3,655,192.
4. Instead of his taxed costs, the sixth respondent shall be entitled to payment by the applicant of the sum of $1,105,200.
5. The applicant pay the costs of the first, second, third, fourth and sixth respondents of their respective motions.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
LEHANE J
Nevertheless, the very substantial differences between the party/party and indemnity estimates suggests, I think, that a greater discount is appropriate in the case of the Bain respondents than in the case of Mr Price. The discount should not be outside the range suggested by Ms Higinbotham in relation to Mr Price’s costs but it should, I think, be at the higher end of that range. Accordingly, I think, the appropriate course is to reduce by 10 per cent the amount of the solicitors’ and counsel’s fees and general disbursements incurred after 24 February 1998. The sum of those items, so reduced, would be $2,481,997 and the total amount recoverable, including the amount for party/party costs up to 24 February 1998, a gross sum of $3,655,192.Conclusion The outcome is that the Court orders that:1.The applicant pay the costs of the proceedings, other than the costs of the cross‑claim of the first and second respondents, of the first and second respondents:(a)incurred up to and including 24 February 1998 – taxed or assessed on a party/party basis;(b)incurred after 24 February 1998, on the basis that such costs are to include all costs except in so far as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, each of the first and second respondents will be completely indemnified by the applicant for its or his costs.2.The applicant pay the costs of the proceedings of the third, fourth and sixth respondents:(a)incurred up to and including 24 February 1998, on a party/party basis;(b)incurred after 24 February 1998, on the basis that such costs are to include all costs except in so far as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, each of the third, fourth and sixth respondents will be completely indemnified by the applicant for its or his costs.3.Instead of their taxed costs, the third and fourth respondents shall be entitled to payment by the applicant of the sum of $3,655,192.4.Instead of his taxed costs, the sixth respondent shall be entitled to payment by the applicant of the sum of $1,105,200.5.The applicant pay the costs of the first, second, third, fourth and sixth respondents of their respective motions.