FEDERAL COURT OF AUSTRALIA
Lopez v Gold Titan Pty Ltd (No 2) [2022] FCAFC 146
File number(s): NSD 34 of 2022 Judgment of: RARES, STEWART AND GOODMAN JJ Date of judgment: 29 August 2022 Catchwords: COSTS – whether costs should be payable now or following delivery of further reasons by the primary judge – whether the successful appellants should pay the respondent’s costs on issues not determined by the Court – whether the amount payable by the respondent should be reduced by reason of the unsatisfactory nature of the Appeal Book produced by the appellants – whether the respondent should be granted a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) Legislation: Federal Court of Australia Act 1976 (Cth), ss 37M and 37N
Federal Court Rules 2011 (Cth), r 36.54
Federal Proceedings (Costs) Act 1981 (Cth), ss 3 and 6
Cases cited: Lopez v Gold Titan Pty Ltd [2022] FCAFC 117
North East Equity Pty Ltd v Proud Nominees Pty Ltd (No 2) [2011] FCAFC 15
North East Equity Pty Ltd v Proud Nominees Pty Ltd [2010] FCAFC 60; 269 ALR 262
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 17 Date of last submissions: 3 August 2022 Date of hearing: Determined on the papers Counsel for the Appellants: Mr J P Knackstredt with Mr P C Gledson Solicitor for the Appellants: Somerville Legal Counsel for the Respondent: Mr M R Hall SC Solicitor for the Respondent: Banki Haddock Fiora ORDERS
NSD 34 of 2022 BETWEEN: NICHOLAS LOPEZ
First Appellant
IMPERIAL FLOORING AUSTRALIA PTY LTD ACN 635 477 593
Second Appellant
AND: GOLD TITAN PTY LTD ABN 47 124 061 169
Respondent
ORDER MADE BY:
RARES, STEWART AND GOODMAN JJ
DATE OF ORDER:
29 AUGUST 2022
THE COURT ORDERS THAT:
1.The respondent pay the appellants’ costs of the appeal, as agreed or taxed, save that the amount payable by the respondent to the appellants not include any costs incurred by the appellants referable to the preparation of Part B (except the index) and Part C of the appeal book.
2.The respondent be granted a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment to the respondent in respect of:
(a)the costs incurred by the respondent in relation to the appeal; and
(b)any costs incurred by the appellants in relation to the appeal that are required to be paid by the respondent to the appellant pursuant to Order 1.
3.The amount of $20,000 paid into Court by the appellants pursuant to the orders made on 2 March 2022 as security for the costs of the appeal be released to the appellants.
Note: Entry of orders is…
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- Case
- [2022] FCAFC 146
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether costs should be payable immediately or following the delivery of further reasons by the primary judge, whether the successful appellants should pay the respondent's costs on issues not determined by the Court, and whether the amount payable by the respondent should be reduced due to the unsatisfactory nature of the appeal book produced by the appellants. Additionally, the court needed to decide whether the respondent should be granted a certificate under the Federal Proceedings (Costs) Act 1981 (Cth).
The court found that a costs certificate should be granted to the respondent as the appeal's success was due to the inadequacy of the primary judge's reasons, which was beyond the control of the respondent. Furthermore, the court considered the reasoning in Lopez (No 1) concerning the adequacy of reasons to have a broader relevance beyond the present case. Consequently, the court concluded that the respondent should pay the appellants' costs of the appeal but should not include any costs incurred by the appellants relating to the preparation of Part B (except the index) and Part C of the appeal book. The court also found that the respondent should be granted a costs certificate under section 6 of the Costs Act and that the $20,000 paid into Court by the appellants as security for the costs of the appeal should be returned to them.
In light of the above, the court ordered that the respondent pay the appellants' costs of the appeal, except for those costs associated with the preparation of Part B (except the index) and Part C of the appeal book. The court further ordered that the respondent be granted a certificate under the Federal Proceedings (Costs) Act 1981 (Cth), and that the $20,000 paid into Court by the appellants be released to them.
Orders
Orders of the court
1. The respondent pay the appellants’ costs of the appeal, as agreed or taxed, save that the amount payable by the respondent to the appellants not include any costs incurred by the appellants referable to the preparation of Part B (except the index) and Part C of the appeal book.
2. The respondent be granted a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment to the respondent in respect of:
(a) the costs incurred by the respondent in relation to the appeal; and
(b) any costs incurred by the appellants in relation to the appeal that are required to be paid by the respondent to the appellant pursuant to Order 1.
3. The amount of $20,000 paid into Court by the appellants pursuant to the orders made on 2 March 2022 as security for the costs of the appeal be released to the appellants.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Each of the parties has made offers of settlement in connection with the appeal. We do not consider that any of these offers have any bearing on the question of costs of the appeal in circumstances where the determination on the appeal was that the proceeding should be remitted for the provision of further reasons, and the appeal did not alter the amount of damages awarded.The preparation of Part C of the appeal book Part C of the appeal book provided by the appellants to the Court and the respondent did not comply with or meet the standards expected of a represented litigant in this Court. In particular:(1)contrary to the requirements of, first, r 36.54(c) of the Federal Court Rules 2011 that Part C of the appeal book contain “only the exhibits and evidence to which the parties refer in the parties’ submissions, arranged in the same order as the Comprehensive Reference Index” and, secondly, [6.2] of Practice Note App 2 (25 October 2016) that the “exhibits, affidavits, annexures or transcript must be relevant to the issues on appeal and necessary for the consideration and determination of the issues and arguments raised by the outline of submissions”, the appellants initially included in Part C a hardcopy of what appeared to be all of the documents in Part B comprising all of the exhibits and evidence in eight large lever arch folders; (2)different copies of the appeal book including in a revised Part C had different page numbering; and(3)the affidavit evidence in the revised Part C was reproduced in a form which did not reflect the rulings on evidence made by the primary judge, with the result that evidence that had been excluded or was the subject of rulings as to the limits of its use was included without annotation. In these circumstances, and having regard to the obligations upon the appellants under s 37N of the Federal Court of Australia Act 1976 (Cth) to conduct the appeal in a way consistent with the overarching purpose in s 37M, namely to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible, it is appropriate that the appellants not recover any costs associated with the production of Part B (except the index) and Part C of the appeal book.THE COSTS ACT Section 6 of the Costs Act provides in so far as is presently relevant:6Costs certificates for respondents—Federal appeals(1)Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.…(3)The certificate that may be granted under subsection (1) … by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the respondent in respect of:(a)the costs incurred by the respondent in relation to the appeal; and(b)any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.