FEDERAL COURT OF AUSTRALIA
Linke v TT Builders Pty Ltd [2015] FCA 111
Citation: Linke v TT Builders Pty Ltd [2015] FCA 111 Parties: TOBIN JAMES LINKE v TT BUILDERS PTY LTD (ACN 120 541 424), ANTONIO MAURIZIO TESSITORE and HARRIS REAL ESTATE PTY LTD (ACN 140 836 997) File number: SAD 56 of 2014 Judge: WHITE J Date of judgment: 23 February 2015 Catchwords: PRACTICE AND PROCEDURE – offer of compromise – failure by offeror to cooperate in giving effect to accepted offer – orders made giving effect to accepted offer pursuant to r 25.10 of Federal Court Rules 2011 (Cth) Legislation: Federal Court Rules 2011 (Cth) r 25.01, 25.08, 25.10 Cases cited: Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Secured Income Real Estate (Australia) v St Martins Investments Pty Ltd (1979) 144 CLR 596Date of hearing: 6 February 2015 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: Ms G Walker Solicitors for the Applicant: Fenwick Elliott Grace Counsel for the Respondents: Mr JR Mills Solicitors for the Respondents: FBR Law
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 56 of 2014
BETWEEN: TOBIN JAMES LINKE
ApplicantAND: TT BUILDERS PTY LTD (ACN 120 541 424)
First RespondentANTONIO MAURIZIO TESSITORE
Second RespondentHARRIS REAL ESTATE PTY LTD (ACN 140 836 997)
Third Respondent
JUDGE:
WHITE J
DATE OF ORDER:
23 FEBRUARY 2015
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The First and Second Respondents are to pay the Applicant’s costs of the proceedings, including the costs of the Applicant in the proceedings in the Federal Circuit Court, in accordance with cll 2.2 and 2.3 of the Notice of Offer of Compromise of 5 September 2014 (the Offer) which was accepted by the Applicant on 3 October 2014;
2.The costs of the Applicant pursuant to cl 2.2 of the Offer, and the costs of the First and Second Respondents pursuant to cl 2.3 of the Offer, are to be taxed;
3.In the event that the First and Second Respondents do not by 25 March 2015 lodge a bill for taxation of their costs under cl 2.3 of the Offer, the Registrar may tax the Applicant’s costs at the figure determined pursuant to cl 2.2 of the Offer;
4.The Applicant has leave pursuant to r 26.12(2)(c) to discontinue the proceedings.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 56 of 2014
BETWEEN: TOBIN JAMES LINKE
ApplicantAND: TT BUILDERS PTY LTD (ACN 120 541 424)
First RespondentANTONIO MAURIZIO TESSITORE
Second RespondentHARRIS REAL ESTATE PTY LTD (ACN 140 836 997)
Third Respondent
JUDGE:
WHITE J
DATE:
23 FEBRUARY 2015
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This decision concerns the costs payable in consequence of the applicant’s acceptance of an offer of compromise made by the first and second respondents pursuant to Pt 25…
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- Case
- [2015] FCA 111
- Decision Date
CaseChat Overview and Summary
The Court needed to determine whether it could enforce the terms of the offer of compromise, including the payment of costs, as per the Federal Court Rules 2011. The Applicant argued that the Respondents had not honoured the terms of the offer, specifically by not paying the agreed costs. The Respondents contended that they had not intended to be bound by the terms of the offer regarding costs. The Court considered the relevant provisions of the Federal Court Rules 2011, particularly Rule 25.10, which deals with offers of compromise and the consequences of non-compliance.
The Court held that it had the authority to enforce the terms of the offer of compromise, as per Rule 25.10. The Court found that the Respondents had indeed accepted the offer, but failed to adhere to the agreed terms regarding costs. Consequently, the Court ordered the Respondents to pay the Applicant's costs as per the offer, mandated the taxation of those costs, and granted the Applicant leave to discontinue the proceedings. The Court also provided for the possibility of the Registrar taxing the Applicant's costs if the Respondents did not submit their costs for taxation by a specified date.
Orders
Orders of the court
1. The First and Second Respondents are to pay the Applicant’s costs of the proceedings, including the costs of the Applicant in the proceedings in the Federal Circuit Court, in accordance with cll 2.2 and 2.3 of the Notice of Offer of Compromise of 5 September 2014 (the Offer) which was accepted by the Applicant on 3 October 2014;
2. The costs of the Applicant pursuant to cl 2.2 of the Offer, and the costs of the First and Second Respondents pursuant to cl 2.3 of the Offer, are to be taxed;
3. In the event that the First and Second Respondents do not by 25 March 2015 lodge a bill for taxation of their costs under cl 2.3 of the Offer, the Registrar may tax the Applicant’s costs at the figure determined pursuant to cl 2.2 of the Offer;
4. The Applicant has leave pursuant to r 26.12(2)(c) to discontinue the proceedings.
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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