Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 3) - [2023] FedCFamC2G 394

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 3) [2023] FedCFamC2G 394

File number(s): SYG 1318 of 2020

Judgment of: JUDGE BAIRD

Date of judgment: 12 May 2023

Catchwords: PRACTICE AND PROCEDURE – COSTS – exercise of discretion – no matters of principle

Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss190, 191, 214

Cases cited: Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedFamC2G 268

Division: Division 2 General Federal Law

Number of paragraphs: 15

Date of last submission/s: 2 May 2023

Date of hearing: Heard on the papers

Place: Sydney

Counsel for the Applicant: Mr J Hennessy SC with Mr M Fleming

Solicitor for the Applicant: Gilbert + Tobin

Counsel for the Respondents: Mr N Murray SC with Ms F St John

Solicitor for the Respondents: Allens
ORDERS

SYG 1318 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
LIFT SHOP PTY LTD

Applicant

AND:
NEXT LEVEL ELEVATOR PTY LTD

First Respondent

COMPACT LIFTS PTY LTD

Second Respondent

NEXT LEVEL COMPACT LIFTS PTY LTD (and others named in the Schedule)

Third Respondent

order made by:

JUDGE BAIRD

DATE OF ORDER:

12 MAY 2023

THE COURT DIRECTS:
1.By 26 May 2023, the Applicant file and serve its written closing submissions on the Applicant’s interlocutory application filed 25 October 2022 as amended on 10 November 2022 (s 138 Application).
2.By 9 June 2023, the Respondents file and serve their written closing submissions on the s 138 Application.

BY CONSENT, THE COURT ORDERS:
3.Pursuant to r 15.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the s 138 Application be decided without further oral hearing.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BAIRD

These reasons concern the applicant’s informal application made on 12 April 2023 upon delivery of my reasons for judgment on the respondents’ application in a proceeding dated 7 November 2022 to set aside notice to produce: Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedFamC2G 268 (NTP Reasons). The notice was served by the applicant on 7 July 2022 in the course of final hearing. These reasons should be read in conjunction with the NTP Reasons.
On 12 April 2023, upon delivery of the NTP Reasons I made orders that:
(1)the notice be set aside;
(2)the applicant to pay the respondents’ costs of and arising from the notice and the respondents’ application…

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 Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 3) 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: [2023] FedCFamC2G 394
Decision Date

CaseChat Overview and Summary

In the case of Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 3) [2023] FedCFamC2G 394, the Federal Circuit and Family Court of Australia (Division 2) was called upon to decide an application by Lift Shop Pty Ltd (the applicant) to vary or set aside a costs order. The case revolves around a notice to produce documents that was issued by the applicant and subsequently set aside by the court. The applicant now seeks to reserve the costs associated with the notice to produce pending the outcome of another interlocutory application. The court had to determine whether it should exercise its discretion under section 214(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to vary or set aside the costs order.

The primary legal issue before the court was whether the costs order made by the court on 12 April 2023 should be varied or set aside. The applicant argued that the costs order should be reserved pending the outcome of an interlocutory application made on 10 November 2022. The applicant contended that the notice to produce and the application to set it aside were intertwined, and that the costs should not be determined until the interlocutory application was resolved. The applicant also submitted that if it succeeded in the interlocutory application, it should not be liable for the costs of the notice to produce, as the notice was issued to expose the process by which certain documents were obtained.

The court considered the arguments presented by the applicant but declined to exercise its discretion to vary or set aside the costs order. The court noted that the notice to produce had already been set aside, and that the costs order followed the usual course where a party succeeds on an application. The court was not persuaded that the circumstances identified by the applicant were sufficient to justify reserving the costs. It found that the legal representatives and taxing officers should be capable of resolving any issues related to the identification of work and material encompassed by the costs order. The court also noted that the applicant's motives or states of mind in issuing the notice to produce did not have a bearing on the subject matter of the costs order or the interlocutory application. Consequently, the court held that the costs order should remain in place.

The court ordered that the applicant and respondents file and serve their written closing submissions on the interlocutory application by specified dates. The court also confirmed that the interlocutory application would be decided on the papers without further oral hearing, as previously agreed by the parties. The court emphasized that if the parties could not meet the specified timetable or had concerns about the page limit, they should communicate with the court's chambers to seek appropriate adjustments.

Orders