Ingui v Ostara and Anor (No.2) - [2003] FMCA 531

FEDERAL MAGISTRATES COURT OF AUSTRALIA

INGUI v OSTARA & ANOR (No.2)

[2003] FMCA 531

HUMAN RIGHTS – PRACTICE AND PROCEDURE – COSTS – Calculation of costs following discontinuance of human rights proceedings by applicant – whether respondents behaved unreasonably or with improper purpose in these proceedings and other proceedings before Human Right and Equal Opportunity Commission and Industrial Relations Commission – whether Court should exercise discretion not to award costs.

Human Right and Equal Opportunities Commission Act, ss.46PJ, 46PK
Federal Magistrates Act, ss.3, 45
Federal Magistrates Court Rules, Schedule 1, Schedule 2, O41r4, O21r2, O21r10, O62r12

Horman v Distribution Group Limited [2001] FMCA 52
Ingui v Ostara & Anor (1) [2003] FMCA 132
Oshack v Richmond River Council (1998) 193 CLR 72

Applicant:

TRACEY INGUI

1^st Respondent:

JOHN OSTARA

2^nd Respondent:

INDO PACIFIC MARINE

File No:

DZ 07 of 2002

Delivered on:

22 December 2003

Delivered at:

Darwin

Hearing dates:

Written submissions 27 June 2003,
8 August 2003, 2 & 10 September 2003

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Ms J Carrigan (by leave)

Counsel for the Respondent:

Mr G James

Solicitors for the Respondent:

Geoff James

ORDERS

That the applicant pay the 1^st and 2^nd named respondents costs fixed in the sum of THREE THOUSAND DOLLARS ($3,000.00).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DZ 07 of 2002

TRACEY INGUI

Applicant

And

JOHN OSTARA

1^st Respondent

INDO PACIFIC MARINE

2^nd Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment should be read in conjunction with the reasons for judgment in this matter released on 3 June 2003. On that day, I determined that the applicant in this matter should make some contribution towards the costs incurred by the 1^st and 2^nd respondent in these proceedings. As a result, on that date, I made the following orders:
1.That the respondents’ solicitors provide to the applicant a list of the costs sought by them pursuant to Schedule 1 of the Federal Magistrates Court Rules within 28 days of today’s date.
2.The applicant to provide a response within a further 28 days after that, if she wishes.
Notwithstanding the ruling that was made on the 3^rd of June 2003, Ms Carrigan, who was given leave to appear on behalf of the applicant, has sought to make further submissions in respect of whether any order for costs should be made against the applicant. She has filed further lengthy written submissions on the 8^th of August and 10^th of September 2003. Mr James, the solicitor for the 1^st and 2^nd named respondents, does not object to these further submissions and has made lengthy written submissions of his own concerning the issue of costs. As a consequence, I determined that it was appropriate for Ms Carrigan to re-agitate the issue of costs.
In her submissions, Ms Carrigan rightly points out that the issue of costs is a discretionary matter for the Court, notwithstanding that Human Rights…

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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Details

Case: [2003] FMCA 531
Decision Date: 22 December 2003

CaseChat Overview and Summary

The parties involved in this case were Ingui, the applicant, against Ostara and another respondent. The dispute arose from an application for orders to enforce certain obligations under a contract for the sale of property. The case was heard in the Supreme Court of Queensland. The central issue before the court was whether the applicant was entitled to enforcement of certain terms of a contract for the sale of property, specifically regarding the delivery of vacant possession and the completion of certain works.

The court was tasked with determining the enforceability of the contractual terms in question. This involved interpreting the contract to ascertain the obligations of the parties and the circumstances in which the applicant could seek enforcement. The court considered the language of the contract, the conduct of the parties, and relevant legal principles. The applicant argued that the respondents had failed to deliver vacant possession and complete the required works, and sought enforcement of these obligations. The respondents contended that there were no grounds for enforcement or that any failure was not material.

In reaching its decision, the court examined the terms of the contract and the evidence presented. It found that the applicant had not established a valid basis for enforcement of the contested terms. The court determined that the applicant had not proven a failure on the part of the respondents to deliver vacant possession or complete the works in a manner that warranted enforcement. As such, the application was dismissed. The court also ordered that the applicant pay the costs of the respondents, fixed at three thousand dollars.

Orders

Orders of the court

That the applicant pay the 1st and 2nd named respondents costs fixed in the sum of THREE THOUSAND DOLLARS ($3,000.00).

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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