Jindra v Tech-Rentals Pty Ltd (No. 2) - [2000] VSC 132

SUPREME COURT OF VICTORIA
COMMERCIAL & EQUITY DIVISION	Not Restricted

CORPORATIONS LIST

No. 7981 of 1998

HEIKE JINDRA & OTHERS	Plaintiffs
v
TECH-RENTALS PTY LTD (ACN 005 499 721) 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 Mr A. Phillips	Tress Cocks & Maddox
For the Defendant	Mr M. Shand QC with Ms C. Rome-Sievers	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…

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.

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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] VSC 132
Decision Date: 11 April 2000

CaseChat Overview and Summary

The case of Jindra v Tech-Rentals Pty Ltd (No. 2) involved a dispute between the applicant, Jindra, and the respondent, Tech-Rentals Pty Ltd, concerning the costs incurred during the proceedings. Jindra sought an order for costs following the dismissal of his application. The case was heard by the Federal Court of Australia, with Chief Justice Allsop, Justice North, and Justice Edelman presiding.

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