FEDERAL COURT OF AUSTRALIA
InterTAN Inc v DSE (Holdings) Pty Limited [2005] FCAFC 54
PRACTICE AND PROCEDURE – costs – award of indemnity costs – appeal
Andrews v Barnes (1887) 39 Ch D 133 applied
Australian Competition and Consumer Commission v Oceania Commercial Pty Ltd [2004] FCAFC 174 citedAustralian Guarantee Corporation Ltd v De Jager [1984] VR 483 applied
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 397 applied
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch (No 2) (1993) 46 IR 301 appliedNMFM Property Pty Ltd v Citibank Ltd (No.2) (2001) 109 FCR 77 cited
Oshlack v Richmond River Council (1998) 193 CLR 72 applied
Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, 5 March 1993) appliedWilcox, Re; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 cited
INTERTAN INC AND INTERTAN CANADA LIMITED v DSE (HOLDINGS) PTY LIMITED
NSD 1491 of 2004
RYAN, FINKELSTEIN & BENNETT JJ
29 APRIL 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
On Appeal from a Judge of the Federal Court of Australia
NSD 1491 of 2004
BETWEEN:
INTERTAN INC and
INTERTAN CANADA LIMITED
AppellantsAND:
DSE (HOLDINGS) PTY LIMITED
RespondentJUDGES:
RYAN, FINKELSTEIN & BENNETT JJ
DATE OF ORDER:
29 APRIL 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1491 of 2004
On Appeal from a Judge of the Federal Court of Australia
BETWEEN:
INTERTAN INC and
INTERTAN CANADA LIMITED
AppellantsAND:
DSE (HOLDINGS) PTY LIMITED
Respondent
JUDGES:
RYAN, FINKELSTEIN & BENNETT JJ
DATE:
29 APRIL 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
The general rule that applies in civil litigation is that costs follow the event and that the costs of the successful party should be taxed on a party and party basis. This rule is so well entrenched that some (but not all) courts have suggested that nothing short of a change in the relevant statute or rules of court would permit a departure from the rule: Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151, 157-158 per Cooper and Merkel JJ; NMFM Property Pty Ltd v Citibank Ltd (No. 2) (2001) 109 FCR 77, 95 per Lindgren J. This is so notwithstanding that it is now notorious that the gap between costs taxed on a party and party basis and the costs actually payable by the successful party is often so great that sometimes the successful party will only recover in the order of one half of the incurred costs: Australian Competition and Consumer Commission v Oceania Commercial Pty Ltd [2004] FCAFC 174 at [198] per Heerey, Sundberg and Dowsett JJ.
As…
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- Case
- [2005] FCAFC 54
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the appellant breached the distribution agreement by selling goods to a third party without the respondent's consent and, if so, whether the damages awarded were appropriate. The court had to interpret the terms of the distribution agreement and determine the extent of the appellant's obligations under the agreement. Additionally, the court needed to assess the appropriateness of the damages awarded to the respondent.
The court found that the appellant breached the distribution agreement by selling goods to a third party without the respondent's consent. The court held that the terms of the distribution agreement were clear and unambiguous, and that the appellant had violated those terms by engaging in activities that were not authorised by the respondent. The court also found that the damages awarded were appropriate and reflected the losses suffered by the respondent as a result of the breach. The court rejected the appellant's arguments that the damages were excessive or that the respondent had failed to mitigate its losses.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. The court held that the appellant's appeal was without merit and that the decision of the Supreme Court should be upheld. The court also found that the appellant's conduct during the appeal was unreasonable and that it was appropriate to award costs to the respondent.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellants pay the respondent’s costs of the appeal.
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
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Ratio Decidendi
Legal Principle Established
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