COSTS — application for costs of trial and appeal — application based on an offer of compromise made pursuant to O 23 of the Federal Court Rules — whether an offer made to all respondents is capable of being accepted by only one — whether unreasonable conduct of litigation should affect costs order
JOHN MILLER CAMPBELL KING AND ORS AS TRUSTEES OF THE TRAVEL COMPENSATION FUND v WAYNE JAMES YURISICH, CHERYL ANNE YURISICH, LANE MOLLER PARTNERS PTY LTD T/A LANE MOLLER PARTNERS (IN LIQUIDATION) AND ROBERT YOUNG VID 1206 OF 2005
SUNDBERG, WEINBERG AND RARES JJ 16 APRIL 2007 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1206 OF 2005
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
JOHN MILLER CAMPBELL KING AND ORS AS TRUSTEES OF THE TRAVEL COMPENSATION FUND Appellant
AND:
WAYNE JAMES YURISICH First Respondent
CHERYL ANNE YURISICH Second Respondent
LANE MOLLER PARTNERS PTY LTD T/A LANE MOLLER PARTNERS (IN LIQUIDATION) Third Respondent
ROBERT YOUNG Fourth Respondent
JUDGES:
SUNDBERG, WEINBERG AND RARES JJ
DATE OF ORDER:
16 APRIL 2007
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The third and fourth respondents pay the appellants’ costs of:
(a)the appeal (on a party/party basis); and
(b)the proceedings at first instance:
(i)as to 30%, on an indemnity basis;
(ii)as to 70%, on a party/party basis.
2.The third and fourth respondents pay 25% of the appellants’ costs of their application for costs in this Court.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1206 OF 2005
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
JOHN MILLER CAMPBELL KING AND ORS AS TRUSTEES OF THE TRAVEL COMPENSATION FUND Appellant
AND:
WAYNE JAMES YURISICH First Respondent
CHERYL ANNE YURISICH Second Respondent
LANE MOLLER PARTNERS PTY LTD T/A LANE MOLLER PARTNERS (IN LIQUIDATION) Third Respondent
ROBERT YOUNG Fourth Respondent
JUDGES:
SUNDBERG, WEINBERG AND RARES JJ
DATE:
16 APRIL 2007
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
THE COURT
The appellant trustees of the Travel Compensation Fund have applied for…
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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AGLC
King v Yurisich (No 2) [2007] FCAFC 51
Case
[2007] FCAFC 51
Decision Date
CaseChat Overview and Summary
In the case of King v Yurisich (No 2), the primary issue before the court was the allocation of costs between the parties involved in a protracted and complex litigation. The case was an appeal concerning a dispute that originated in a claim for $200,000, which had been extensively litigated over a period of time. The Court of Appeal was tasked with determining the appropriate costs order, particularly focusing on whether there was any justification for an indemnity costs order against any of the parties involved.
The legal issues centred around the reasonableness of the conduct of the parties throughout the litigation process, and the extent to which the parties had acted in an economical and reasonable manner. The Court was required to assess whether the defendants' conduct was unreasonable, thereby justifying a costs order on an indemnity basis. Additionally, the Court considered the overall conduct of the appeal itself, which was noted to be excessively lengthy and resource-intensive, given the relatively modest amount of money at stake.
The Court of Appeal held that the defendants' conduct was unreasonable, and therefore, they should bear a significant portion of the costs on an indemnity basis. However, the fund’s application for a full indemnity costs order was dismissed. The Court reasoned that while the fund had some success in its application, this was largely due to the Court raising the issue of the special costs order made by the trial judge. Consequently, the fund was awarded only 25% of its costs. The Court further noted the excessive nature of the litigation, observing that the appeal books comprised approximately 5,000 pages, of which very little was relevant to the arguments presented. The Court emphasised the lack of an appropriate commercial approach to resolving the dispute and the disproportionate expenditure of time and resources.
In conclusion, the Court made an order that the third and fourth respondents were to pay the appellants' costs of the appeal and the proceedings at first instance, with 30% of the trial costs to be paid on an indemnity basis and the remaining 70% on a party/party basis.
Orders
Orders of the court
1. The third and fourth respondents pay the appellants’ costs of:
(a) the appeal (on a party/party basis); and
(b) the proceedings at first instance:
(i) as to 30%, on an indemnity basis;
(ii) as to 70%, on a party/party basis.
2.
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
SUNDBERG, WEINBERG AND RARES JJ
In our opinion, Lane Moller and Mr Young should pay 30% of the costs of the trial on an indemnity basis and the balance on a party/party basis. This would reflect his Honour’s view of the unreasonableness of the conduct of the defence adding unjustly and unfairly to the cost burden of the fund in the litigation. The fund should be compensated for its costs in having to deal with issues that should never have been litigated. CONCLUSION The fund’s application for an order for indemnity costs for the whole of the hearing and the appeal has failed. The fund has had a limited measure of success on the present application, but only after the Court raised with the parties the question of the special order made by the trial judge for the costs of the hearing. In these circumstances the fund should have only 25% of the application for costs.CONDUCT OF THE APPEAL We do not wish to part from this case without observing that the appeal books occupied something like 5,000 pages in ten volumes. Very little of that material was referred to during the course of submissions or oral argument. Indeed, a number of the volumes were not opened at all during the hearing. Much of this material was completely unnecessary having regard to the trial judge’s findings of fact and the nature of the arguments raised on the appeal. Moreover, although no doubt the issues were important to the parties, the conduct of this litigation has been extravagant. It concerned a claim for $200,000 that occupied 10 days of hearing before the trial judge and two days on appeal. This expenditure of time and resources, not only of the parties, but also of the Court bears no apparent relationship to the value of the interests at stake. The fact that the Court has been shown only one attempt to compromise the proceedings on which to base a claim for indemnity costs, or to resist any such claim, is indicative of a lack of any appropriate commercial approach to resolution attempts by the parties with their professional advisers. The Court is not able to come to any conclusion as to whether any fault lies on any one of the parties to the proceedings. However, given that the fund, Lane Moller and Mr Young were parties with some sophistication, it is indeed unfortunate that they were unable to resolve matters or to find a more economical way of litigating what in truth was a very small claim.