| SUPREME COURT OF VICTORIA | |
| COMMERCIAL & EQUITY DIVISION | Not Restricted |
CORPORATIONS LIST
No. 7981 of 1998
| HEIKE JINDRA & OTHERS | Plaintiffs |
| v | |
| TECH-RENTALS PTY LTD and | Defendants |
| AUSTRALIAN PACIFIC TECHNOLOGY LIMITED | |
| TECH-RENTALS PTY LTD (ACN 005 499 721) | Plaintiff by Counterclaim |
| and | |
| HEIKE JINDRA & OTHERS | Defendants by |
---
JUDGE: | Warren J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 April 2000 | |
DATE OF JUDGMENT: | 11 April 2000 | |
CASE MAY BE CITED AS: | Heike Jindra & Ors v Tech-Rentals Pty Ltd & Anor (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 132 | |
---
Costs – whether conduct of applicants was "highhanded" – whether application was "hopeless" – solicitor/client costs
---
APPEARANCES: | Counsel | Solicitors |
For the Plaintiffs | Mr R. Kendall QC with | Tress Cocks & Maddox |
| For the Defendant | Mr M. Shand QC with | Bazzani Brand Lawyers |
| For the Second Defendant | Mr P. Anastasiou | Norton Gledhill |
HER HONOUR:
On 6 April 2000 I delivered judgment dismissing an application brought by the plaintiffs and defendants by counterclaim to vary an injunction ordered by Byrne J on 19 March 1999. As a result of the dismissal of the application the first and second defendants seek an order that the plaintiffs and defendants by counterclaim pay the costs of the first and second defendants of and incidental to the application on an indemnity basis.
Order 63 rule 28 of the Supreme Court Rules provides that subject to the Rules, costs in a proceeding which are to be taxed shall be taxed on a party and party basis, a solicitor and client basis, or such other basis as the Court may direct. Rule 30 provides for solicitor client costs. Rule 31 provides that, except as provided by the rules or any order of the Court, costs are to be taxed on a party and party basis. The ordinary rule in adversary litigation is that where the Court orders the costs of one party to be paid by another party, the order is for payment of those costs on the party and party basis: Colgate‑Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 230, 232. However the discretion of the Court to order costs and as to the appropriate basis for such an order is "absolute and unfettered" and may depart from the usual practice in a judicial exercise of the discretion: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 3 97 at 400; also Re Wilcox, ex parte Venture Industries Pty Ltd & ors (1996) 141 ALR 727.
The authorities suggest that there are a number of bases whereby the Court in the exercise of its discretion should award solicitor and client or indemnity costs. Firstly, if the bringing of the application and the pursuit of it was a "highhanded presumption": AGC Ltd v De Jager [1984] VR 483 at 502 per Tadgell J. Secondly, if the application was commenced and prosecuted in circumstances where the…
Keep reading for free
Create a free CaseChat account to read Jindra v Tech-Rentals Pty Ltd (No. 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2000] VSC 132
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the conduct of Jindra was highhanded and whether the application he made was hopeless. Additionally, the court had to consider the appropriate costs between solicitor and client in the context of the proceedings.
The court determined that Jindra's conduct was indeed highhanded, as he had acted in a manner that was unreasonable and in disregard of the respondent's position. Furthermore, the court found that the application Jindra made was hopeless, lacking any real prospect of success. Given these findings, the court ruled that Jindra should bear the costs of the application, including the costs of the respondent's solicitor and client. The court emphasised the importance of the principle that parties should not unnecessarily incur costs in pursuing or defending hopeless applications.
In conclusion, the Federal Court of Australia ordered that Jindra was to bear the costs of the application, including the respondent's solicitor and client costs. The court's decision underscored the significance of responsible conduct in litigation and the consequences of pursuing applications that lack a reasonable prospect of success.
Orders
Orders of the court
Full text does not contain this section.
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.