Lopez v Gold Titan Pty Ltd (No 2)

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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

Northern Territory v Sangare [2019] HCA 25; 265 CLR 164

Secretary, Department of Primary Industries, Parks, Water and Environment v Tasmanian Aboriginal Centre Incorporated (No 2) [2016] FCAFC 137

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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Details
Case
[2022] FCAFC 146
Decision Date

CaseChat Overview and Summary

In the matter of Lopez v Gold Titan Pty Ltd (No 2), the Full Court of the Federal Court of Australia was asked to determine the costs associated with the appeal brought by the appellants against the respondent. The appellants had successfully appealed the primary judge's decision, leading to the remittal of the proceeding for the provision of further reasons. However, the appeal did not alter the amount of damages awarded.

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

We are satisfied that a costs certificate should be granted to the respondent. The appeal turned on the inadequacy of the reasons of the primary judge, a matter beyond the control of the respondent. Further, the reasoning in Lopez (No 1) concerning the adequacy of reasons has a wider relevance beyond the present case.CONCLUSION For the reasons set out above, the respondent should pay the appellants’ costs of the appeal, but not including any costs incurred by the appellants referable to the preparation of Part B (except the index) and Part C of the appeal book. The respondent should be granted a costs certificate under s 6 of the Costs Act. Further, the $20,000 which the appellants paid into Court as security for the costs of the appeal should be returned to them.

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.