FEDERAL COURT OF AUSTRALIA
Leviston v PQ Management Pty Ltd (No 4) [2023] FCA 1524
File number: QUD 166 of 2020 Judgment of: DERRINGTON J Date of judgment: 26 September 2023 Date of publication of reasons: 4 December 2023 Catchwords: COSTS – costs of proceedings where each party achieved some substantial success – multiple hearings – broad apportioning of costs to reflect proportion of success Legislation: Corporations Act 2001 (Cth) Cases cited: El-Debel v Micheletto (Trustee) (No 2) [2021] FCAFC 146
Leviston v PQ Management Pty Ltd (No 2) [2023] FCA 295
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 15 Date of hearing: 26 September 2023 Counsel for the Plaintiff: Mr M White Solicitor for the Plaintiff: Queensland Legal Counsel for the Defendants: Mr M Lyons Solicitor for the Defendants: McCullough Robertson ORDERS
QUD 166 of 2020 BETWEEN: ANDREW TROY LEVISTON
Plaintiff
AND: PQ MANAGEMENT PTY LTD
First Defendant
DONALD NEAL ISON
Second Defendant
GREGORY SHANE ELDRIDGE (and another named in the Schedule)
Third Defendant
ORDER MADE BY:
DERRINGTON J
DATE OF ORDER:
26 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Save to the extent previously ordered, the first, second and third defendants are to pay:
(a)one-half of the plaintiff’s costs of the proceedings incurred on a party and party basis up to and including 8 July 2022; and
(b)two-thirds of the plaintiff’s costs of the proceedings incurred on a party and party basis on and from 9 July 2022.
2.Pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), the costs in Order 1 are to be paid in a lump sum.
3.By 4:00 pm AEST on 10 October 2023, the plaintiff is to file and serve his evidence in chief, including a Costs Summary in the form of an affidavit in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS), in support of the costs award related to Order 1.
4.By 4:00 pm AEST on 24 October 2023, the first, second and third defendants are to file and serve any evidence in answer to the evidence in chief referred to in Order 3, including a Costs Response in the form of an affidavit in accordance with paragraphs 4.13 and 4.14 of the Court’s Costs Practice Note (GPN-COSTS).
THE COURT DIRECTS THAT:
5.Pursuant to r 1.37 of the Federal Court Rules 2011 (Cth), Registrar Schmidt:
(a)determine the amount of costs payable pursuant to order 1 in such a manner as he sees fit, including, if considered appropriate, on the papers; and
(b)within 28 days of the making of the determination, make orders for the payment of the amount so determined.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
The parties have sought orders in relation to the costs of…
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- Case
- [2023] FCA 1524
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the costs of the proceedings, where both parties achieved some substantial success, particularly after multiple hearings. The legal issues included the appropriate apportionment of costs, reflecting the proportion of success achieved by each party. Given the complexity and length of the litigation, the court considered the overall success of each party in relation to the claims and counter-claims made.
The court found that the plaintiff had achieved substantial success on some claims, while the defendants had also succeeded on certain issues. It was determined that the plaintiff should be awarded one-half of the costs incurred up to 8 July 2022 and two-thirds of the costs incurred from 9 July 2022 onwards. The court ordered the defendants to pay these costs in a lump sum. Additionally, the plaintiff was required to provide evidence in support of the costs claim, and the defendants had to respond to this evidence. The court directed that the Registrar determine the exact amount of costs payable and make appropriate orders for payment within 28 days.
The court's final orders mandated specific deadlines for filing evidence and responses regarding the costs, and authorised the Registrar to determine the precise amount of costs payable. The defendants were required to pay these costs as specified, reflecting the proportionate success achieved by both parties throughout the proceedings.
Orders
Orders of the court
1. Save to the extent previously ordered, the first, second and third defendants are to pay:
(a) one-half of the plaintiff’s costs of the proceedings incurred on a party and party basis up to and including 8 July 2022; and
(b) two-thirds of the plaintiff’s costs of the proceedings incurred on a party and party basis on and from 9 July 2022.
2. Pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), the costs in Order 1 are to be paid in a lump sum.
3. By 4:00 pm AEST on 10 October 2023, the plaintiff is to file and serve his evidence in chief, including a Costs Summary in the form of an affidavit in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS), in support of the costs award related to Order 1.
4. By 4:00 pm AEST on 24 October 2023, the first, second and third defendants are to file and serve any evidence in answer to the evidence in chief referred to in Order 3, including a Costs Response in the form of an affidavit in accordance with paragraphs 4.13 and 4.14 of the Court’s Costs Practice Note (GPN-COSTS).
THE COURT DIRECTS THAT:
5. Pursuant to r 1.37 of the Federal Court Rules 2011 (Cth), Registrar Schmidt:
(a) determine the amount of costs payable pursuant to order 1 in such a manner as he sees fit, including, if considered appropriate, on the papers; and
(b) within 28 days of the making of the determination, make orders for the payment of the amount so determined.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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