Letten v Templeton (No 2)

[2014] FCAFC 146

FEDERAL COURT OF AUSTRALIA

Letten v Templeton (No 2) [2014] FCAFC 146

Citation:	Letten v Templeton (No 2) [2014] FCAFC 146
Appeal from:	Application for leave to Appeal: Australian Securities and Investments Commission v Letten (No 22) [2014] FCA 681
Parties:	MARK RONALD LETTEN v DAMIAN JOHN TEMPLETON AND PHILIP HENNESSY (IN THEIR CAPACITY AS COURT APPOINTED RECEIVERS AND MANAGERS)
File number(s):	VID 376 of 2014
Judge(s):	BESANKO, DAVIES AND WHITE JJ
Date of judgment:	30 October 2014
Date of hearing:	3 October 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	4
Counsel for the Applicant:	Mr I G Waller QC with Mr S Hibble
Solicitor for the Applicant:	Baker & McKenzie
Counsel for the Respondents:	Mr R Strong
Solicitor for the Respondents:	King & Wood Mallesons

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 376 of 2014

BETWEEN:	MARK RONALD LETTEN Applicant
AND:	DAMIAN JOHN TEMPLETON and PHILIP HENNESSY (IN THEIR CAPACITY AS COURT APPOINTED RECEIVERS AND MANAGERS) Respondents

JUDGES:	BESANKO, DAVIES AND WHITE JJ
DATE OF ORDER:	30 OCTOBER 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant pay 75% of the respondents’ costs. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 376 of 2014

BETWEEN:	MARK RONALD LETTEN Applicant
AND:	DAMIAN JOHN TEMPLETON and PHILIP HENNESSY (IN THEIR CAPACITY AS COURT APPOINTED RECEIVERS AND MANAGERS) Respondents

JUDGES:	BESANKO, DAVIES AND WHITE JJ
DATE:	30 OCTOBER 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1. On 3 October 2014, the Court pronounced orders dismissing both the applicant’s application for leave to leave to appeal and the respondents’ notice to objection to competency. The Court reserved on the question of costs. The Court’s preliminary view, without the benefit of argument from counsel, was that there should be an order that the applicant pay 75% of the respondents’ costs, reflecting the issues on which the respondents failed.

2. Mr Strong, who appeared for the respondents, contended that they should have the whole of their costs by reason that there was a significant overlap between the issues ventilated on the applicant's application for leave to appeal and the issues raised by the competency objection. In the alternative he contended that if there were to be some discount for having failed on the competency objection, it should be not more than ten percent. In support, Mr Strong argued that the competency objection raised legal questions only for determination that did not require any further evidence to be adduced and the argument did not take up much of the hearing time.

3. Mr Waller QC who appeared for the applicant contended that the proposed order was appropriate because the competency objection did take up some time and diverted the attention and resources of the applicant.

4. As Mr Strong acknowledged, the issues raised by the competency objection only partially overlapped the issues for determination on the applicant's application. In the circumstances, we consider that it is appropriate to deprive the respondents of a portion of their costs. Ultimately it is a matter of evaluation and a discount of 25% is reasonably proportionate to the separate issues that required the Court's determination.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko, Davies and White.

Associate:

Dated:       30 October 2014