McCracken v Phoenix Constructions (Queensland) Pty Ltd - [2013] FCAFC 87

FEDERAL COURT OF AUSTRALIA
McCracken v Phoenix Constructions (Queensland) Pty Ltd
[2013] FCAFC 87

Citation: McCracken v Phoenix Constructions (Queensland) Pty Ltd [2013] FCAFC 87

Parties: JARROD MCCRACKEN v PHOENIX CONSTRUCTIONS (QUEENSLAND) PTY LTD (ACN 056 159 614)

File number: QUD 542 of 2012

Judges: LANDER, SIOPIS AND GILMOUR JJ

Date of judgment: 8 August 2013

Catchwords:
COSTS – application made after judgment for costs – application made after judgment for indemnity costs – whether applications ought to have been made at hearing of appeal

PRACTICE AND PROCEDURE – non-party non-intervener seeking to be heard after judgment

Legislation:
Bankruptcy Act 1966 (Cth), s 153B
Federal Circuit Court Rules 2001, r 1.05, sch 3 pt 2
Federal Court of Australia Act 1976 (Cth), pt VB

Federal Court Rules 2011, r 25.14(3)

Cases cited:
           Arico Trading International Pty Ltd v Kimberley-Clark Aust Pty Ltd [1999] FCA 275

           Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572

           Johnston v Cameron [2002] FCA 301

           McCracken v Phoenix Constructions (Queensland) Pty Ltd [2012] FCA 1410

           McCracken v Phoenix Constructions (Queensland) Pty Ltd [2013] FCAFC 41

           Newman v New Zealand (No 2) (2012) 295 ALR 1

Pattison v Hadjimouratis (2006) 155 FCR 226

Date of hearing: Heard on the papers

Date of last submissions: 29 May 2013

Place: Adelaide (Videoconference to Brisbane)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 64

Counsel for the Appellant: Mr D de Jersey

Solicitor for the Appellant: Walsh Halligan Douglas Lawyers

Counsel for the Respondent: Mr D Savage SC and Mr C Coulsen

Solicitor for the Respondent: Connolly Suthers Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 542 of 2012

BETWEEN:
JARROD MCCRACKEN
Appellant

AND:
PHOENIX CONSTRUCTIONS (QUEENSLAND) PTY LTD (ACN 056 159 614)
Respondent

JUDGES:

LANDER, SIOPIS AND GILMOUR JJ

DATE OF ORDER:

8 AUGUST 2013

WHERE MADE:

ADELAIDE (VIDEOCONFERENCE TO BRISBANE)

THE COURT ORDERS THAT:
1.The respondent pay the appellant’s costs of the hearing before the Federal Magistrate up to 11.00am on 5 July 2012 on a party and party basis and after that time on an indemnity basis.
2.The respondent pay the appellant’s costs of this appeal, including costs incurred subsequent to judgment on 18 April 2013, on an indemnity basis.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 542 of 2012

BETWEEN:
JARROD MCCRACKEN
Appellant

AND:
PHOENIX CONSTRUCTIONS (QUEENSLAND) PTY LTD (ACN 056 159 614)
Respondent

JUDGES:

LANDER, SIOPIS AND GILMOUR JJ

DATE:

8 AUGUST 2013

PLACE:

ADELAIDE (VIDEOCONFERENCE TO BRISBANE)

REASONS FOR JUDGMENT
THE COURT

On 18 April 2013, the Court made the following orders:
1. The appeal is allowed.
2.The sequestration order and the order for costs made by the Federal Magistrate on 14 September 2011, are set aside.
3.The creditor’s petition of 11 August 2011, stands dismissed.
4.The respondent is to pay the appellant’s costs of the hearing before the Federal Magistrate and on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCAFC 87
Decision Date: 8 August 2013

CaseChat Overview and Summary

In McCracken v Phoenix Constructions (Queensland) Pty Ltd, the appellant, McCracken, sought costs from the respondent, Phoenix Constructions. The dispute originated from an earlier legal action where McCracken was awarded costs by the Federal Magistrate. Following the appeal, McCracken applied for indemnity costs related to the appeal process, arguing that the respondent's conduct warranted such a decision. The court needed to determine whether the application for indemnity costs was appropriately made post-judgment and if the non-party, non-intervener, had grounds to be heard after the judgment.

The legal issues revolved around the procedural correctness of the application for indemnity costs, specifically whether such an application should have been made during the hearing of the appeal. Another issue was the standing of the non-party, non-intervener, to be heard after the judgment was rendered. The court had to evaluate the merits of these applications and decide on the appropriateness of the requested costs.

The court found that the application for indemnity costs should have been made during the appeal hearing, but due to the exceptional circumstances and the respondent’s conduct, it was reasonable to grant the costs. The court also ruled that the non-party, non-intervener, was entitled to be heard post-judgment. Consequently, the respondent was ordered to pay the appellant’s costs of the hearing before the Federal Magistrate and the costs of the appeal on an indemnity basis.

The final orders mandated the respondent to pay the appellant’s costs of the hearing before the Federal Magistrate up to a certain time on a party and party basis and thereafter on an indemnity basis. Additionally, the respondent was to cover the appellant's costs of the appeal, including those incurred post-judgment, also on an indemnity basis. These orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The respondent pay the appellant’s costs of the hearing before the Federal Magistrate up to 11.00am on 5 July 2012 on a party and party basis and after that time on an indemnity basis.

2. The respondent pay the appellant’s costs of this appeal, including costs incurred subsequent to judgment on 18 April 2013, on an indemnity basis.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		McCracken v Phoenix Constructions (Queensland) Pty Ltd [2013] FCAFC 87
Parties:		JARROD MCCRACKEN v PHOENIX CONSTRUCTIONS (QUEENSLAND) PTY LTD (ACN 056 159 614)
File number:		QUD 542 of 2012
Judges:		LANDER, SIOPIS AND GILMOUR JJ
Date of judgment:		8 August 2013
Catchwords:		COSTS – application made after judgment for costs – application made after judgment for indemnity costs – whether applications ought to have been made at hearing of appeal PRACTICE AND PROCEDURE – non-party non-intervener seeking to be heard after judgment
Legislation:		Bankruptcy Act 1966 (Cth), s 153B Federal Circuit Court Rules 2001, r 1.05, sch 3 pt 2 Federal Court of Australia Act 1976 (Cth), pt VB Federal Court Rules 2011, r 25.14(3)
Cases cited:		Arico Trading International Pty Ltd v Kimberley-Clark Aust Pty Ltd [1999] FCA 275 Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572 Johnston v Cameron [2002] FCA 301 McCracken v Phoenix Constructions (Queensland) Pty Ltd [2012] FCA 1410 McCracken v Phoenix Constructions (Queensland) Pty Ltd [2013] FCAFC 41 Newman v New Zealand (No 2) (2012) 295 ALR 1 Pattison v Hadjimouratis (2006) 155 FCR 226
Date of hearing:	Heard on the papers
Date of last submissions:	29 May 2013
Place:	Adelaide (Videoconference to Brisbane)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	64
Counsel for the Appellant:	Mr D de Jersey
Solicitor for the Appellant:	Walsh Halligan Douglas Lawyers
Counsel for the Respondent:	Mr D Savage SC and Mr C Coulsen
Solicitor for the Respondent:	Connolly Suthers Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 542 of 2012

BETWEEN:	JARROD MCCRACKEN Appellant
AND:	PHOENIX CONSTRUCTIONS (QUEENSLAND) PTY LTD (ACN 056 159 614) Respondent

JUDGES:	LANDER, SIOPIS AND GILMOUR JJ
DATE OF ORDER:	8 AUGUST 2013
WHERE MADE:	ADELAIDE (VIDEOCONFERENCE TO BRISBANE)

JUDGES:	LANDER, SIOPIS AND GILMOUR JJ
DATE:	8 AUGUST 2013
PLACE:	ADELAIDE (VIDEOCONFERENCE TO BRISBANE)