Lobux Pty Ltd v Willshaun Pty Ltd (No 2)

FEDERAL COURT OF AUSTRALIA

Lobux Pty Ltd v Willshaun Pty Ltd (No 2) [2022] FCA 395  

File number(s):

QUD 64 of 2020

Judgment of:

DOWNES J

Date of judgment:

14 April 2022

Catchwords:

COSTS – whether costs should be reduced pursuant to r 40.08(b) Federal Court Rules 2011 (Cth) – whether successful party should be paid a proportion of its costs pursuant to s 43(3)(c) Federal Court of Australia Act 1976 (Cth)

Legislation:

Competition and Consumer Act 2010 (Cth) Sch 2 s 24

Federal Court of Australia Act 1976 (Cth) ss 37N, 43(3)(c)

Federal Court Rules 2011 (Cth) r 40.08(b)

Cases cited:

Dutton v Bazzi (No 2) [2021] FCA 1560

Lobux Pty Ltd v Willshaun Pty Ltd [2022] FCA 204

Umoona Tjutagku Health Service Aboriginal Corporation v Walsh (2019) 268 FCR 401; [2019] FCAFC 32

Division:

General Division

Registry:

Queensland

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs:

29

Date of last submissions:

18 March 2022

Date of hearing:

Determined on the papers

Counsel for the Applicant:

Ms SK Long

Solicitor for the Applicant:

Celtic Legal

Solicitor for the Respondent:

Cooper Grace Ward

ORDERS

QUD 64 of 2020

BETWEEN:

LOBUX PTY LTD ACN 008 032 488

Applicant

AND:

WILLSHAUN PTY LTD ACN 077 535 507

Respondent

ORDER MADE BY:	DOWNES J
DATE OF ORDER:	14 APRIL 2022

THE COURT ORDERS THAT:

1.The respondent pay the applicant’s costs of and incidental to the proceedings, including the cross-claim and any reserved costs.

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

REASONS FOR JUDGMENT

DOWNES J:

1. On 11 March 2022, the Court delivered judgment in this matter in Lobux Pty Ltd v Willshaun Pty Ltd [2022] FCA 204.

2. The applicant (Lobux) was successful in obtaining the primary relief sought by it, namely the recovery of possession of a custom-made “Hooklift Backdoor Vacuum Tank” which it had manufactured pursuant to a contract with the respondent (Willshaun). 

3. Willshaun had limited success in relation to its cross-claim in that it obtained certain declarations concerning unfair contract terms within the meaning of s 24 of the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)). However, these declarations were of no utility because they did not assist it in defending Lobux’s claim for the return of the vacuum tank.

4. An order was made on 11 March 2022 requiring Willshaun to file and serve any submissions by 16 March 2022 as to the necessity for any further relief in relation to the terms found to be unfair and the form of that relief.  Willshaun did not serve any submissions.  This served to amplify the lack of utility in claiming that these clauses were unfair.

5. An order was also made on 11 March 2022 for the parties to file and serve any submissions as to costs by 18 March 2022.  On 18 March 2022, submissions were received from both parties.

6. Lobux…