FEDERAL COURT OF AUSTRALIA
Hardingham v RP Data Pty Limited (Third Party Costs) [2023] FCA 480
File number(s): NSD 1266 of 2018 Judgment of: THAWLEY J Date of judgment: 16 May 2023 Catchwords: COSTS – application for costs order against third party litigation funder – where funded applicants brought unsuccessful proceedings – where litigation funder stood to receive financial benefit from the fruits of the litigation – cost orders made against litigation funder Legislation: Federal Court of Australia Act 1976 (Cth) s 43 Cases cited: Arklow Investments Ltd v McLean HC Auckland CP49/97, 19 May 2000
Brecher v Barrack Investments Pty Ltd [2018] FCA 472
Carborundum Abrasives Ltd v Bank of New Zealand (No 2) [1992] 3 NZLR 757
Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498
Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50; 200 FCR 154
Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2004] UKPC 39; [2005] 1 NZLR 145
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340
Gore v Justice Corp Pty Ltd [2002] FCAFC 83; 119 FCR 429
Green v CGU Insurance Ltd [2008] NSWCA 148; 67 ACSR 105
Hardingham v RP Data Pty Limited [2019] FCA 2075
Hardingham v RP Data Pty Limited (No 2) [2019] FCA 2138
Hardingham v RP Data Pty Limited(No 3) [2020] FCA 868
Hardingham v RP Data Pty Limited [2020] FCA 1062
Hardingham v RP Data Pty Limited [2021] FCAFC 148; 395 ALR 644
Knight v FP Special Assets Limited [1992] HCA 28; 174 CLR 178
KSMC Holdings Pty Ltd (t/as Hubba Bubba Childcare on Haig) v Bowden (No 3) [2020] NSWCA 158
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 105
Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd – Costs [2020] NSWSC 633
PMWorks Pty Ltd v Management Services Australia Pty Ltd (t/as Peak Performance PM) [2018] NSWCA 168
RP Data Pty Ltd v Hardingham [2022] HCA 39; 97 ALJR 40
Division: General Division Registry: New South Wales National Practice Area: Intellectual Property Sub-area: Copyright and Industrial Designs Number of paragraphs: 34 Date of last submission/s: 12 May 2023 Date of hearing: Determined on the papers Counsel for the Respondent: Mr MD Martin KC Solicitor for the Respondent: Mills Oakley Lawyers Counsel for the Prospective Respondent: James Sleight Solicitor for the Prospective Respondent: CCSG Legal Pty Ltd ORDERS
NSD 1266 of 2018 BETWEEN: JAMES KELLAND HARDINGHAM
First Applicant
REAL ESTATE MARKETING AUSTRALIA PTY LTD
Second Applicant
AND: RP DATA PTY LIMITED
Respondent
COURT HOUSE CAPITAL PTY LTD
Prospective Respondent
ORDER MADE BY:
THAWLEY J
DATE OF ORDER:
16 MAY 2023
THE COURT ORDERS THAT:
1.Pursuant to section 43 of the Federal Court of Australia Act 1976 (Cth),…
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- Case
- [2023] FCA 480
- Decision Date
CaseChat Overview and Summary
The court examined the relevant statutory and case law to determine if it had the authority to make a costs order against the funder. The court referenced the authority granted by section 43 of the Federal Court of Australia Act 1976 (Cth) and the principles established in previous cases. It concluded that the funder's potential financial gain from the litigation was sufficient to warrant a costs order against them, despite the unsuccessful outcome of the proceedings. The court found that the funder's involvement in the litigation justified the imposition of costs, aligning with the overarching objective of discouraging improper litigation conduct.
In its decision, the court ordered that Court House Capital Pty Ltd pay the respondent's costs on a party and party basis up to a specified date, and on an indemnity basis thereafter, as well as the costs of the respondent's interlocutory application. The court also mandated a lump sum payment of these costs and outlined procedures for determining the amount if the parties could not agree. The orders further required the respondent to file a Costs Summary and the funder to file a Costs Response, with a fallback mechanism for the Registrar to determine the lump sum if necessary. The court reserved the right for the parties to apply for further orders within a specified period.
Orders
Orders of the court
1. Pursuant to section 43 of the Federal Court of Australia Act 1976 (Cth), Court House Capital Pty Ltd ACN 612 636 405 pay the respondent’s costs of:
(a) the proceeding excluding the cross-claim:
(i) on a party and party basis up to 11.00am on 28 June 2019; and
(ii) thereafter on an indemnity basis; and
(b) the respondent’s interlocutory application dated 3 February 2023.
2. Pursuant to rule 40.02(b) of the Federal Court Rules 2011 (Cth), the costs in order 1 be paid by way of lump sum.
3. Pursuant to rule 40.02(c), if the parties cannot agree by 30 May 2023 on the amount of the lump sum, then the proceedings be referred to a Registrar of the Court to fix the amount of the lump sum.
4. On or before 31 May 2023, the respondent file and serve any Costs Summary in accordance with the Costs Practice Note (GPN-COSTS).
5. On or before 14 June 2023, Court House Capital Pty Ltd file and serve any Costs Response in accordance with the Costs Practice Note (GPN-COSTS).
6. Pursuant to rule 1.37, the Registrar:
(a) determine the quantum of the lump sum costs in such manner as he or she thinks fit, including, if thought appropriate, on the papers;
(b) as soon as reasonably practicable after making the determination, make orders for the payment by Court House Capital Pty Ltd within 28 days of the amount so determined.
7. Reserve liberty to the parties to apply within 7 days in relation to these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011..
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
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