MACLEAN CORPORATION v PANTZER (No.2)

[2006] FMCA 357

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MACLEAN CORPORATION v PANTZER (No.2) [2006] FMCA 357

COSTS – Amendment of formal orders incorporated into reasons for judgment.

Applicant: MACLEAN CORPORATION

Respondent: WARREN PANTZER

File Number: SYG 1322 of 2005

Judgment of: Raphael FM

Hearing date: 9 March 2006

Date of Last Submission: 9 March 2006

Delivered at: Sydney

Delivered on: 9 March 2006

REPRESENTATION

Counsel for the Applicant: Mr G Underwood

Solicitors for the Applicant: Thomas Mitchell Solicitors

Counsel for the Respondent: Ms J Richards

Solicitors for the Respondent: Phillips Fox

ORDERS

1. Order three of the formal orders amended to read:

   (3) The first respondent pay the applicant's costs of the notice of motion on a party and party basis up to and including 22 February 2006 and thereafter on an indemnity basis, such costs to be taxed if not agreed in accordance with the Federal Court Act and rules.”

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1322 of 2005

MACLEAN CORPORATION

Applicant

And

WARREN PANTZER

Respondent

REASONS FOR JUDGMENT

1. I have been asked to amend my proposed order that the first respondent pay the applicant's costs of the notice of motion, which would impliedly be on a party and party basis, to make those costs payable on an indemnity basis and I am provided with copies of two letters, one of 21 February 2006 from the applicant's solicitors to the respondent's solicitors and one of 26 February 2006 from the applicant's solicitors to the respondent's solicitors.

2. The first letter sets out the reasons why the applicant believes it will succeed in the case and offers to resolve the proceedings on the basis of a payment in accordance with the orders sought in the notice of motion plus agreed costs of $,7000, or taxed.  That proposal was obviously not agreed to because the second letter puts an offer of payment of $40,000 plus $3,500 for costs and presumably that offer was declined by the respondent.

3. The applicant has succeeded in obtaining an order for $40,000 plus interest and costs.  The costs involved are certain to be in excess of the sum of $3,500 and therefore the respondent has failed to accept an offer which, if he had accepted, would have disposed of the matter more advantageously than the resulting hearing.

4. In the circumstances, I propose to amend my order so that order (3) reads:

   “(3)  The first respondent pay the applicant's costs of the notice of motion on a party and party basis up to and including 22 February 2006 and thereafter on an indemnity basis, such costs to be taxed if not agreed in accordance with the Federal Court Act and rules.”

   The formal orders will reflect this change which will be incorporated into the reasons for judgment that are published. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  13 March 2005