Monsour Pty Ltd v AMOS
[2009] FMCA 1298
•6 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MONSOUR PTY LTD v AMOS | [2009] FMCA 1298 |
| BANKRUPTCY – COSTS – An order for costs on an indemnity basis or in the alternate for an order for costs on the standard basis – the application was largely technical. |
| Colgate Palmolive Company and Colgate Palmolive Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225 |
| Applicant: | MONSOUR PTY LTD |
| Respondent: | EDWARD AMOS |
| File Number: | BRG 244 of 2006 |
| Judgment of: | Burnett FM |
| Hearing dates: | 4, 11 and 12 February 2009 |
| Date of Last Submission: | 12 February 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 6 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mrs Hodge |
| Solicitors for the Applicant: | McInnes Wilson Lawyers |
| Counsel for the Respondent: | Mr Cooke |
| Solicitors for the Respondent: | Keller Nall & Brown |
ORDERS
That the respondent pay the applicant’s costs of and incidental to the application on a standard basis and assessed at $9,225.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 244 of 2006
| MONSOUR PTY LTD |
Applicant
And
| EDWARD AMOS |
Respondent
REASONS FOR JUDGMENT
I determined this matter and passed judgment on 6 August 2009. The parties were directed to file submissions in respect of costs by 20 August 2009.
The applicant was successful in its application and seeks costs. In its submissions the applicant contends for an order for costs on an indemnity basis or in the alternate for an order for costs on the standard basis. The respondent’s material does not specifically address the form of costs order but rather is in the form of an objection to the sum of costs claimed by the applicant.
The general rule is that costs follow the event. The application was largely technical and there is no reason why the general rule ought be displaced.
The applicant asks for costs to be assessed on the indemnity basis.
Although I found against the respondent its case was by no means unarguable. As a review of the authorities in my judgment indicate matters pertaining to accord and satisfaction and the application of principles in respect of instances where it is said to arise are not always clear cut. Accordingly the circumstances of this case do not appear to me to be such as to warrant the court departing from the usual course that is that costs be standard costs. For instance I do not consider the respondent’s approach to be in lawful disregard of known facts or clearly established law.
In the circumstances I consider the appropriate order for costs to be costs on a standard basis to be assessed.
Assessment
This application has an extensive history which need not be restated here as it was addressed in the principal judgement. The process of assessment of costs has to this point and in my assessment of the personalities in this case, in the future, is likely to result in further uneconomic conflict.
An assessment of costs is attached to the affidavit of Donald Francis Keenan filed 11 August 2009. From my assessment the bill of costs appears comprehensive, empirically founded and accurate. It appears to provide for a reasonable sum for costs having regard to the Application.
The matters to be considered when addressing an application for an Order for a payment of gross sum costs were addressed in Julien v Secretary, Department of Employment and Workplace Relations (No. 2) [2009] FCA 1259 per Spender J.
As with His Honour, I too am concerned in this case with the prospect of recovery of costs. These proceedings commenced as in the Courts bankruptcy jurisdiction. Although solvency was conceded, that matter was not tested. Further the process of taxation would impose an additional financial burden on the applicant which would be disproportionate to the value of the costs to be assessed. At some point economy must take precedence to process. In this case that point has been reached. I accept the assessment attached to Mr Keenan’s affidavit and assess costs at $9,225.00.
Order
The respondent pay the applicant’s costs of and incidental to the application on a standard basis and assessed at $9,225.00.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: B Schmidt
Date: 24 December 2009
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