Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company (No 2)

[2021] FCAFC 119

FEDERAL COURT OF AUSTRALIA

Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company (No 2) [2021] FCAFC 119  

Appeal from:

Energy City Qatar Holding Company v Hub Street Equipment Pty Ltd (No 2) [2020] FCA 1116

Energy City Qatar Holding Company v Hub Street Equipment Pty Ltd (No 3) [2020] FCA 1219

File number:

NSD 1045 of 2021

Judgment of:

ALLSOP CJ, MIDDLETON AND STEWART JJ

Date of judgment:

29 June 2021

Catchwords:

COSTS – consent orders – appropriate form of order

Cases:

Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 110

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

International Commercial Arbitration

Number of paragraphs:

8

Date of last submissions:

28 June 2021

Date of hearing:

Determined on the papers

Counsel for the Appellant:

T Mehigan SC

Solicitor for the Appellant:

Henry William Lawyers

Counsel for the Respondent:

T D Castle SC

Solicitor for the Respondent:

Cowell Clarke Commercial Lawyers

 

ORDERS

NSD 1045 of 2021

BETWEEN:

HUB STREET EQUIPMENT PTY LTD (ABN 52 109 882 617)

Appellant

AND:

ENERGY CITY QATAR HOLDING COMPANY (REGISTERED IN THE CR UNDER NO. 34913)

Respondent

ORDER MADE BY:	ALLSOP CJ, MIDDLETON AND STEWART JJ
DATE OF ORDER:	29 JUNE 2021

THE COURT ORDERS THAT:

1.The security paid into Court by the appellant pursuant to the order of the Court made on 19 November 2020, plus any accumulated interest thereon, be returned to the appellant by payment to the trust account of the solicitors for the appellant.

2.There be no orders as to the costs of the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. On 25 June 2021, the Court delivered its reasons for judgment allowing an appeal from the primary judge’s reasons in Energy City Qatar Holding Company v Hub Street Equipment Pty Ltd (No 2) [2020] FCA 1116: see Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 110. The Court ordered that the appeal be allowed and that the orders and declarations made by the primary judge on 26 August 2020 in the proceeding below be set aside and substituted with an order that the proceeding be dismissed.

2. The Court gave the parties an opportunity to file written submissions on the questions of costs of the proceeding below and on appeal.

3. On 28 June 2021, the solicitor for the appellant provided the Court with proposed consent orders in the following terms:

   1.The order for costs made by Jagot J in the trial proceedings on 26 August 2020 be set aside.

   2.The order of Registrar Van Le on 19 November 2020 pursuant to which the Applicant provided security for costs of the appeal be vacated and the Court directs that the amount of the security be returned to the Applicant by payment to the trust account of the solicitors for the Appellant.

   3.There be no orders as to the costs of these proceedings.

   The proposed orders were said to reflect a settlement agreement reached between the parties shortly before the Court handed down its judgment: see Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 110 at [2].

4. The Court is content to make orders giving effect to the parties’ agreed position. It is necessary, however, to make some amendments to the proposed orders.

5. It is unnecessary to make proposed order 1 because the orders of the primary judge were set aside by the Court on 25 June 2021.

6. In relation to proposed order 2, it is inappropriate to vacate the order made by the Court on 19 November 2020 requiring the appellant to pay security for costs. Instead, the Court will order that the security be released to the appellant by way of payment of the sum to the trust account of the appellant’s solicitor. That order should also provide for the payment to the appellant of any accrued interest on the sum provided as security.

7. Whilst it is not strictly necessary to make proposed order 3, the Court is content to make the order so as to ensure its record reflects the parties’ agreed position as to the costs of the appeal.

8. The orders of the Court will therefore be as follows:

   (1)The security paid into Court by the appellant pursuant to the order of the Court made on 19 November 2020, plus any accumulated interest thereon, be returned to the appellant by payment to the trust account of the solicitors for the appellant.

   (2)There be no orders as to the costs of the appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop and Justices Middleton and Stewart.

Associate:

Dated:       29 June 2021