FEDERAL COURT OF AUSTRALIA
Loyola v Cryeng Pty Ltd (No 2) [2012] FCAFC 98
Citation: Loyola v Cryeng Pty Ltd (No 2) [2012] FCAFC 98 Appeal from: Cryeng Pty Ltd v Loyola [2011] FCA 956 Parties: GEORGE HUMBERTO LOYOLA and PIONEER CRYOGENICS PTY LIMITED v CRYENG PTY LTD ACN 071 997 763 File number: NSD 1544 of 2011 Judges: JACOBSON, BESANKO AND PERRAM JJ Date of judgment: 10 July 2012 Catchwords: PRACTICE AND PROCEDURE – application by appellants for court to recall its orders on basis that submission on appeal not dealt with in reasons for judgment
Held: the application is refused
COSTS – determination of costs at first instance and on appeal – whether an order under rule 1.04(3) Federal Court Rules 2011 to apply earlier rules appropriate – where effect of orders on appeal that applicant (respondent on appeal) awarded sum of $50,000 at first instance – operation of Order 62 Rule 36A(1) of earlier rules and whether appropriate to order otherwise – costs on appeal where appellants successful for the most part but failed on some issues
Held: the appellants are to pay the respondent’s costs at first instance, and the respondent is to pay 85 percent of the appellants’ costs of the appeal
Legislation: Federal Court Rules 2011 rr 1.04, 40.08
Federal Court Rules 1979 O 62 r 36ACases cited: Cryeng Pty Ltd v Loyola [2011] FCA 956 cited
Loyola v Cryeng Pty Ltd [2012] FCAFC 71 citedDate of Written Submissions: Appellants – 25 May 2012
Respondent – 1 June 2012Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Appellants: Mr M Pesman with Ms J Little Solicitor for the Appellants: Norton Rose Counsel for the Respondent: Mr B Lee SC with Ms R Francois Solicitor for the Respondent: William Roberts Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1544 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: GEORGE HUMBERTO LOYOLA
First AppellantPIONEER CRYOGENICS PTY LIMITED
Second AppellantAND: CRYENG PTY LTD ACN 071 997 763
Respondent
JUDGES:
JACOBSON, BESANKO AND PERRAM JJ
DATE OF ORDER:
10 JULY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application of the appellants to recall the orders of 18 May 2012 be refused.
2.As to the costs at first instance:
(a)Pursuant to Rule 1.04(3) of the Federal Court Rules 2011, the earlier Rules apply; and
(b)The appellants pay the respondent’s costs.
3.As to the costs of the appeal the respondent is to pay 85 per cent of the appellants’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1544 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: GEORGE HUMBERTO LOYOLA
First AppellantPIONEER CRYOGENICS PTY LIMITED
Second AppellantAND: CRYENG PTY LTD ACN 071 997 763
Respondent
JUDGES:
JACOBSON, BESANKO AND PERRAM JJ
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- Case
- [2012] FCAFC 98
- Decision Date
CaseChat Overview and Summary
The court began by addressing the application to recall the orders, concluding that there were no grounds to do so. The reasoning for judgment was deemed sufficient, and the court found no merit in Loyola's argument that critical submissions had been overlooked. Turning to the costs, the court determined that the earlier rules should apply, following Rule 1.04(3) of the Federal Court Rules 2011. Consequently, Cryeng was awarded $50,000 in costs at first instance, and the appellants were ordered to pay these costs. Regarding the appeal, the court found that the appellants were successful for the most part, but not entirely. The court held that it was appropriate to order that Cryeng pay 85% of the appellants' costs on appeal, balancing the success of the parties and the overall outcome of the litigation.
In conclusion, the Federal Court dismissed Loyola's application to recall the earlier orders, upheld the costs awarded at first instance, and set the costs of the appeal. The court's decision reflected a careful consideration of the procedural and substantive issues presented, ensuring that the costs were allocated fairly in light of the partial success of both parties. The final orders mandated that the appellants pay the respondent's costs at first instance, while Cryeng was to cover 85% of the appellants' costs on appeal.
Orders
Orders of the court
1. The application of the appellants to recall the orders of 18 May 2012 be refused.
2. As to the costs at first instance:
(a) Pursuant to Rule 1.04(3) of the Federal Court Rules 2011, the earlier Rules apply; and
(b) The appellants pay the respondent’s costs.
3. As to the costs of the appeal the respondent is to pay 85 per cent of the appellants’ costs.
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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