J H Lever and Co Pty Ltd v Maniotis (No 2)

[2006] FCA 1830

FEDERAL COURT OF AUSTRALIA

J H Lever & Co Pty Ltd v Maniotis (No 2) [2006] FCA 1830

J H LEVER & CO PTY LTD v CON MANIOTIS, TASTE MASTER PTY LTD, ANDREW FOTHERINGHAM AND BRETT COPPING

SAD 803 OF 2003

MANSFIELD J
20 DECEMBER 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 803 OF 2003

BETWEEN:

J H LEVER & CO PTY LTD
Applicant

AND:

CON MANIOTIS
First Respondent

TASTE MASTER PTY LTD
Second Respondent

ANDREW FOTHERINGHAM
Third Respondent

BRETT COPPING
Fourth Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	20 DECEMBER 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The respondents’ costs recoverable from the applicant be fixed in a gross sum of $250,000. 

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 803 OF 2003

BETWEEN:

J H LEVER & CO PTY LTD
Applicant

AND:

CON MANIOTIS
First Respondent

TASTE MASTER PTY LTD
Second Respondent

ANDREW FOTHERINGHAM
Third Respondent

BRETT COPPING
Fourth Respondent

JUDGE:	MANSFIELD J
DATE:	20 DECEMBER 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 4 December 2006, I gave reasons for a ruling on the respondents’ motion that the costs they had been awarded should be fixed in a gross sum.  At that time, I declined to make a gross sum order for costs under O 62 r 4(2)(c) of the Federal Court Rules. 

2. The respondents, on the basis of further information now provided, have sought an order in the nature of an interim order for a gross sum order for costs which, they accept, may well be considerably less than the amount to which they may be entitled if I were to fix a gross sum order for costs for the whole of the costs to which they were entitled.

3. The respondents are prepared for me to proceed on that basis, although it is not certain that, if such an order is made, the Court would have power to make a further gross sum order for additional costs in the light of any further evidence in the future.  The respondents are prepared to take that risk.  In those circumstances, I do not see why I should not proceed to make a gross sum order for costs at the present time, albeit one which will be at a considerably lower figure than the respondents might otherwise be entitled to.

4. In the event that the respondents subsequently apply to fix a further gross sum order for costs on the basis of further information, the question of whether the Court has that power, and whether it should be exercised, can be debated.

5. The application now before the Court seeks to isolate the costs into three categories.  That categorisation is done following the reasons for decision given on 4 December 2006, in which I focused upon four particular items of cost as claimed, to explain why at that time.  I was reluctant to make a gross sum order for costs.  Underlying those reasons was my concern that the amounts claimed for costs, although no doubt reflecting costs incurred by the solicitors for the respondents, may not all be recoverable on a party and party basis.  The four particular items of costs were what counsel for the applicant called "big ticket items", but it does not follow that the other items which do not fall into that description are necessarily or properly all recoverable on a party and party basis.  My reasons for my ruling on 4 December 2006 sought to make that clear.

6. Accordingly, at this stage, I am not prepared to assume that the amount claimed for costs, which equates to the amount charged for costs in respect of the period 13 October 2003 to 17 September 2004, are all costs which are properly recoverable on a party and party basis.  Nor do I assume that all costs other than those costs which were claimed in the four items which were particularly discussed in the reasons for decision of 4 December 2006, and which cover the period 11 November 2004 to 7 March 2005, are also recoverable on a party and party basis.  In other words, I am not prepared, for the purpose of what I am asked to do today, to break up the costs into those three categories, that is 13 October 2003 to 17 September 2004, 11 November 2004 to 7 March 2005, excluding the four items which were specifically addressed in previous reasons for decision, and thirdly, the four items which were previously addressed in the reasons for decision.  I am, however, prepared to form a view, in the light of the decision I made previously, that this is an appropriate matter to make a lump sum order for costs as to a base amount to which the respondents may be entitled as a gross sum for costs.  For the reasons I have given, it will be a conservative amount.

7. In view of the approach I am taking, I have taken into account not simply the costs charged for the two periods to which I have referred, the latter one excluding the four “big ticket” items, but also the costs claimed for those four items.  Adopting a conservative approach, as I have indicated I will, and without indicating that I think the approach fairly reflects to the respondents the whole of the costs which they may properly be entitled to on a gross sum under O 62 r 4(2)(c), I have reached the view at present that in any event, their costs properly recoverable in respect of the orders for costs which they have now procured will be not less than $250,000.  I have also borne in mind the general approach to fixing a gross sum order for costs discussed in my earlier reasons.

8. I have indicated that that sum may be significantly less than the amount which the respondents would be entitled to for a gross sum, if I had all the information which they may ultimately wish to present in due course on their application.  In that sense, it is an interim order only.  It is not to be taken as indicating one way or the other whether the respondents, in the circumstances, have the right to seek a further gross sum order for costs or whether, if they may do so, they will in fact establish an entitlement to any additional amount.  As I have indicated, that is a matter for them to address in due course.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield J.

Associate:

Dated:       22 December 2006

Counsel for the Applicant:	T Cogan
Solicitor for the Applicant:	T Cogan & Co
Counsel for the Respondent:	M Frayne
Solicitor for the Respondent:	Rosey Batt & Associates
Date of Hearing:	20 December 2006
Date of Judgment:	20 December 2006