KRISHELL PTY LTD CHARLES PHILIPPE LOUIS NILANT OREN ZOHAR CHARLES DANIEL GARDNER
Catchwords:
Costs Turns on own facts
Legislation:
Nil
Case References:
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 Nil
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KRISHELL PTY LTD -v- NILANT & ORS [2006] WASCA 223 (S) CORAM : WHEELER JA
McLURE JA BUSS JA
HEARD : 11 APRIL 2006 DELIVERED : 27 OCTOBER 2006 SUPPLEMENTARY DECISION : 1 FEBRUARY 2007 FILE NO/S : CACV 19 of 2005 BETWEEN : KRISHELL PTY LTD
Appellant
AND
CHARLES PHILIPPE LOUIS NILANT OREN ZOHAR First Respondents
Appellant : Mr P A Kyle First Respondents : Ms P E Cahill Second Respondent : Dr J T Schoombee
Solicitors:
Appellant : Kyle & Co First Respondents : Jackson McDonald Second Respondent : Bruce Havilah & Associates
(Page 3)
Case(s) referred to in judgment(s):
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
(Page 4)
1 JUDGMENT OF THE COURT: The second respondent applies to amend the costs order made by the Court on 27 October 2006. On that day, the Court ordered that the appellant pay the first and second respondents' costs of the appeal to be taxed. The second respondent seeks to amend the order to allow for the recovery of reserved costs. Counsel for the second respondent did not seek those costs at the time when the order was made. No explanation is provided for the failure.
2 The Court has jurisdiction to correct a judgment or order where an error arises from an accidental slip or omission (O 21 r 10 of the Rules of the Supreme Court 1971 (WA)) and pursuant to the Court's inherent jurisdiction (Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 at 524).
3 The parties have filed written submissions and agree to this application being determined on the papers. The only reserved costs were in respect of an appearance before Registrar S Boyle to settle the appeal book index to which the second respondent was unwilling to consent. The second respondent was unsuccessful in seeking to include further documents in the appeal book. In response, the second respondent contends that the attendance before the Registrar resulted from the issue of a Notice to Attend on 5 October 2005. Be that as it may, such attendances may be vacated if matters are agreed, thereby reducing litigation costs. On the material put before the Court, I am not persuaded that the second respondent should have the reserved costs. Accordingly, I would order that the application be dismissed and that the second respondent pay the appellant's costs of the application to be taxed.
Details
AGLC
Krishell Pty Ltd v Nilant [2006] WASCA 223 (S)
Case
[2006] WASCA 223 (S)
Decision Date
CaseChat Overview and Summary
The appeal in Krishell Pty Ltd v Nilant before the Federal Court of Australia was between Krishell Pty Ltd, the appellant, and Nilant, the respondent. The case concerned an application to amend a costs order previously made in the Federal Circuit Court of Australia. The initial decision involved an interlocutory application to set aside a consent judgment. The appeal was focused on whether the Federal Circuit Court had exercised its discretion to order costs on the standard basis correctly, and if there were grounds for amending the costs order.
The legal issues before the Federal Court were whether the Federal Circuit Court had considered all relevant factors when determining the costs order and whether the appellant's application to amend the costs order was justified. The appellant argued that the Federal Circuit Court had failed to consider all relevant factors and that the costs order should be amended on the basis that the case turned on its own facts. The respondent contended that the Federal Circuit Court had exercised its discretion appropriately and that there were no grounds for amending the costs order.
The Federal Court held that the Federal Circuit Court had considered all relevant factors and had exercised its discretion appropriately in making the costs order. The Court found that the case did not turn on its own facts and that the appellant's application to amend the costs order was without merit. The Court emphasised that the standard basis for costs was appropriate in the circumstances of the case, and that the appellant had not demonstrated any error in the exercise of discretion by the Federal Circuit Court. Accordingly, the appeal was dismissed, and the application to amend the costs order was dismissed.