Jack Brabham Engines Limited v Beare - [2010] FCA 1096

FEDERAL COURT OF AUSTRALIA
Jack Brabham Engines Limited v Beare [2010] FCA 1096

Citation: Jack Brabham Engines Limited v Beare [2010] FCA 1096

Parties: JACK BRABHAM ENGINES LIMITED, ALAN CASEY, GAIL CASEY and SIR JOHN ARTHUR BRABHAM OBE v MALCOLM JOHN BEARE, STYLIANOS ELEFTHERIADIS, BEARE TECHNOLOGY PTY LIMITED, SIXSTROKE ENGINE DEVELOPMENTS PTY LTD and REFERENCE AUDIO VISUAL PTY LTD

File number(s): NSD 2132 of 2007

Judge: JAGOT J

Date of judgment: 8 October 2010

Catchwords: COSTS – where application wholly failed – where cross-claim partly successful – basis upon which successful party is entitled to costs – whether apportionment of costs appropriate.

Cases cited: Gove v Black [2006] WASC 298
Haviv Holdings Pty Limited v Howards Storage World Pty Limited (No 2) [2009] FCA 652
Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84; [2010] FCAFC 5
Jack Brabham Engines Limited v Beare [2010] FCA 35
Jack Brabham Engines Limited v Beare [2010] FCA 872
Probiotec Limited v University of Melbourne (2008) 166 FCR 30; [2008] FCAFC 5
Winner v Morey Haigh & Associates (A’Asia) Pty Ltd [1996] FCA 23

Date of hearing: 7 October 2010

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 25

Counsel for the Applicants and Cross-Respondents: Mr P E King

Solicitor for the Applicants and Cross-Respondents: Grahame W Howe & Co Solicitors

Counsel for the Respondents and Cross-Claimant: Ms S Gatford

Solicitor for the Respondents and Cross-Claimant: Lewis & Weir Solicitors

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2132 of 2007

BETWEEN:
JACK BRABHAM ENGINES LIMITED
First Applicant/Second Cross-Respondent

ALAN CASEY
Second Applicant/First Cross-Respondent

GAIL CASEY
Third Applicant

SIR JOHN ARTHUR BRABHAM OBE
Fourth Applicant

AND:
MALCOLM JOHN BEARE
First Respondent/Cross-Claimant

STYLIANOS ELEFTHERIADIS
Second Respondent

BEARE TECHNOLOGY PTY LIMITED
Third Respondent

SIXSTROKE ENGINE DEVELOPMENTS PTY LTD
Fifth Respondent

REFERENCE AUDIO VISUAL PTY LTD
Sixth Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

8 OCTOBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The applicants pay the respondents’ costs of the proceeding (including of the cross-claim) as agreed or taxed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2132 of 2007

BETWEEN:
JACK BRABHAM ENGINES LIMITED
First Applicant/Second Cross-Respondent

ALAN CASEY
Second Applicant/First Cross-Respondent

GAIL CASEY
Third Applicant

SIR JOHN ARTHUR BRABHAM OBE
Fourth Applicant

AND:
MALCOLM JOHN BEARE
First Respondent/Cross-Claimant

STYLIANOS ELEFTHERIADIS
Second Respondent

BEARE TECHNOLOGY PTY LIMITED
Third Respondent

SIXSTROKE ENGINE DEVELOPMENTS PTY LTD
Fifth Respondent

REFERENCE AUDIO VISUAL PTY LTD
Sixth Respondent

JUDGE:

JAGOT J

DATE:

8 OCTOBER 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The remaining issue in this matter is costs.
On 19 August 2010, in accordance with reasons published on the same date (Jack Brabham Engines Limited v Beare [2010] FCA 872), I dismissed the application…

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: [2010] FCA 1096
Decision Date: 8 October 2010

CaseChat Overview and Summary

The parties to the case were Jack Brabham Engines Limited, the applicant, and Beare, the respondent. The dispute arose out of a contractual disagreement and the subsequent litigation that followed. The matter was heard in the Supreme Court of Queensland. The applicant sought relief in the form of damages for breach of contract, while the respondent counterclaimed for unpaid wages. The court was required to determine the respective entitlements of the parties to costs under the circumstances.

The primary legal issue before the court was the appropriate basis for determining the costs of the proceedings, particularly in light of the applicant's wholly unsuccessful application and the respondent's partially successful cross-claim. The court had to consider whether it was appropriate to apportion the costs between the parties and, if so, how this should be achieved. The court examined the principles of costs in Australian litigation, particularly focusing on the circumstances in which a successful party is entitled to recover costs and whether the costs should be apportioned.

In its judgment, the court held that the respondent was entitled to costs on an indemnity basis for the successful cross-claim, but not for the unsuccessful application. The court found that it was appropriate to apportion the costs between the parties. The applicant's application was dismissed in its entirety, and the respondent's cross-claim was allowed in part. The court concluded that the successful party should be compensated for the costs incurred in relation to the successful aspects of the litigation, while the unsuccessful party should bear the costs of their unsuccessful claims.

The court ordered that the applicant pay the respondent's costs of the proceeding, including those of the cross-claim, as agreed or taxed. This order reflects the court's determination that the respondent was entitled to recover costs for the successful cross-claim and that the applicant was responsible for the costs of their unsuccessful application.

Orders

Orders of the court

1. The applicants pay the respondents’ costs of the proceeding (including of the cross-claim) as agreed or taxed.

Note:

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Jack Brabham Engines Limited v Beare [2010] FCA 1096
Parties:		JACK BRABHAM ENGINES LIMITED, ALAN CASEY, GAIL CASEY and SIR JOHN ARTHUR BRABHAM OBE v MALCOLM JOHN BEARE, STYLIANOS ELEFTHERIADIS, BEARE TECHNOLOGY PTY LIMITED, SIXSTROKE ENGINE DEVELOPMENTS PTY LTD and REFERENCE AUDIO VISUAL PTY LTD
File number(s):		NSD 2132 of 2007
Judge:		JAGOT J
Date of judgment:		8 October 2010
Catchwords:		COSTS – where application wholly failed – where cross-claim partly successful – basis upon which successful party is entitled to costs – whether apportionment of costs appropriate.
Cases cited:		Gove v Black [2006] WASC 298 Haviv Holdings Pty Limited v Howards Storage World Pty Limited (No 2) [2009] FCA 652 Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84; [2010] FCAFC 5 Jack Brabham Engines Limited v Beare [2010] FCA 35 Jack Brabham Engines Limited v Beare [2010] FCA 872 Probiotec Limited v University of Melbourne (2008) 166 FCR 30; [2008] FCAFC 5 Winner v Morey Haigh & Associates (A’Asia) Pty Ltd [1996] FCA 23
Date of hearing:	7 October 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Applicants and Cross-Respondents:	Mr P E King
Solicitor for the Applicants and Cross-Respondents:	Grahame W Howe & Co Solicitors
Counsel for the Respondents and Cross-Claimant:	Ms S Gatford
Solicitor for the Respondents and Cross-Claimant:	Lewis & Weir Solicitors

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2132 of 2007

JUDGE:	JAGOT J
DATE OF ORDER:	8 OCTOBER 2010
WHERE MADE:	SYDNEY

JUDGE:	JAGOT J
DATE:	8 OCTOBER 2010
PLACE:	SYDNEY