Loyola v Cryeng Pty Ltd (No 3)

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FEDERAL COURT OF AUSTRALIA

Loyola v Cryeng Pty Ltd (No 3) [2014] FCAFC 7

Citation: Loyola v Cryeng Pty Ltd (No 3) [2014] FCAFC 7
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: 21 February 2014
Catchwords:

PRACTICE AND PROCEDURE – slip rule – dispute about the meaning of costs orders – any uncertainty results from accidental slip or omission.

Held: Costs order amended.

Legislation: Federal Court Rules 1979 (Cth) O 35,  r 7, O 62, r 36A
Federal Court Rules 2011 (Cth) r 39.05
Cases cited: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Loyola v Cryeng Pty Ltd [2012] FCAFC 71
Loyola v Cryeng Pty Ltd (No 2) [2012] FCAFC 98
SMK Pty Ltd (formerly Canberra Roof Trusses Pty Ltd) v Kramer (unreported, Lee, Tamberlin and Kiefel JJ, 24 October 1995, unreported)
Date of hearing: Determined on the papers
Date of last submissions: Appellants – 10 December 2013
Respondent – 4 December 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 11
Solicitor for the Appellants: Norton Rose Fulbright
Solicitor for the Respondent: DGT Costs 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 Appellant

PIONEER CRYOGENICS PTY LIMITED
Second Appellant
AND:

CRYENG PTY LTD ACN 071 997 763
Respondent

JUDGES:

JACOBSON, BESANKO AND PERRAM JJ

DATE OF ORDER:

21 FEBRUARY 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Paragraph 2(b) of the order made on 10 July 2012 be amended to read:

(b)Pursuant to Order 62, Rule 36A(1), the appellants pay all of the respondent’s costs on a party/party basis as taxed or agreed.

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 Appellant

PIONEER CRYOGENICS PTY LIMITED
Second Appellant
AND:

CRYENG PTY LTD ACN 071 997 763
Respondent

JUDGES:

JACOBSON, BESANKO AND PERRAM JJ

DATE:

21 FEBRUARY 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

JACOBSON J:

  1. The issue which now arises concerns the meaning of an order made on 10 July 2012 in accordance with reasons given by the majority judges.

  2. Since I did not express a view as to the appropriateness of the order, it would be inappropriate for me to join with my brother judges as to the meaning of the order and the application of the slip rule.

  3. However, I agree with Besanko and Perram JJ that the Court has power to correct the earlier order for the reasons given by them.

I certify that the preceding three (3) numbered paragraphs are a…
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Details
Case
[2014] FCAFC 7
Decision Date

CaseChat Overview and Summary

The case of Loyola v Cryeng Pty Ltd (No 3) involved a dispute about the interpretation of costs orders in the Federal Court. The applicants sought an amendment to a costs order to clarify the amount and basis on which costs were to be paid. The original order, made on 10 July 2012, required the applicants to pay certain costs, but the wording of the order was ambiguous, leading to confusion about the exact amount and basis of the costs to be paid. The applicants argued that the ambiguity arose from an accidental slip or omission and sought an amendment to the order to reflect the intended terms.

The legal issue before the court was whether the ambiguity in the original costs order resulted from an accidental slip or omission, and if so, whether the order could be amended to correct this. The court had to interpret the relevant rules of the Federal Court Rules 2011, particularly Order 62, Rule 36A(1), which provides for the amendment of orders where there is an accidental slip or omission.

In its decision, the court held that the ambiguity in the original costs order did indeed result from an accidental slip or omission. The court found that the applicants intended to pay all of the respondent’s costs on a party/party basis, as taxed or agreed, and that this was the correct interpretation of the intended terms. The court exercised its discretion under Order 62, Rule 36A(1) to amend the costs order to reflect this interpretation. The court made an order amending paragraph 2(b) of the original costs order to specify that the applicants were to pay all of the respondent’s costs on a party/party basis, as taxed or agreed. The applicants were required to pay the respondent’s costs of the application.

Orders

Orders of the court

1. Paragraph 2(b) of the order made on 10 July 2012 be amended to read:

(b) Pursuant to Order 62, Rule 36A(1), the appellants pay all of the respondent’s costs on a party/party basis as taxed or agreed.

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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