N.V. Sumatra Tobacco Trading Company v British American Tobacco Australia Services Limited
[2015] FCA 666
•2 July 2015
FEDERAL COURT OF AUSTRALIA
N.V. Sumatra Tobacco Trading Company v British American Tobacco Australia Services Limited [2015] FCA 666
Citation: N.V. Sumatra Tobacco Trading Company v British American Tobacco Australia Services Limited [2015] FCA 666 Parties: N.V. SUMATRA TOBACCO TRADING COMPANY v BRITISH AMERICAN TOBACCO AUSTRALIA SERVICES LIMITED ACN 004 069 649 File number(s): QUD 260 of 2008 Judge(s): GREENWOOD J Date of judgment: 2 July 2015 Catchwords: PRACTICE AND PROCEDURE – application for payment out of Court of monies paid into Court as security for costs of the proceeding Date of hearing: Determined on the papers Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 11 Solicitor for the Applicant: Mr T Bennett, Bennett & Philp Solicitor for the Respondent: Mr S Stern, Corrs Chambers Westgarth
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 260 of 2008
BETWEEN: N.V. SUMATRA TOBACCO TRADING COMPANY
ApplicantAND: BRITISH AMERICAN TOBACCO AUSTRALIA SERVICES LIMITED ACN 004 069 649
Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
2 JULY 2015
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.By operation of rr 1.32 and 1.36 of the Federal Court Rules 2011, judgment in the application be published from Chambers.
2.The application for payment out of Court of the security monies be determined on the papers.
3.The funds held by the Court in security for the respondent’s costs in the proceeding pursuant to orders of the Court of 16 October 2008, 12 November 2008 and 8 December 2010 together with interest thereon be paid out of Court to the respondent in part satisfaction of the taxed costs, by way of payment to the Trust Account of the solicitors for the respondent particularised as follows: Corrs Chambers Westgarth Solicitors Trust Account, Westpac Banking Corporation, BSB 033‑340, Account 271035, Reference 9056866.
4.The applicant pay the costs of the respondent of and incidental to the application for orders for payment of the security monies out of Court to the solicitors for the respondent, in an amount of $2,200.00.
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 260 of 2008
BETWEEN: N.V. SUMATRA TOBACCO TRADING COMPANY
ApplicantAND: BRITISH AMERICAN TOBACCO AUSTRALIA SERVICES LIMITED ACN 004 069 649
Respondent
JUDGE:
GREENWOOD J
DATE:
2 JULY 2015
PLACE:
BRISBANE
REASONS FOR JUDGMENT
In the principal proceeding, judgment was delivered and orders made on 9 September 2011. The principal proceeding was concerned with an appeal by the applicant (“NVS Tobacco”) from a decision of the delegate of the Registrar of Trade Marks made on 31 July 2008. It is not necessary to recite in these reasons the detail of the orders. It is sufficient to note that the decision of the Registrar was varied in a particular way and the application, by way of appeal, was otherwise dismissed.
The respondent (“BAT”) made an application by way of cross‑appeal. That cross‑appeal was upheld in particular respects but otherwise dismissed.
The parties were ordered to file submissions in relation to the question of the costs of the appeal and cross‑appeal.
On 14 November 2011, orders were made in relation to costs which included an order that NVS Tobacco pay 85% of BAT’s costs of and incidental to the applicant’s notice of appeal and the respondent’s notice of cross‑appeal.
During the course of the proceedings, orders were made in relation to the provision of security for costs. On 16 October 2008 (taken together with the order of 12 November 2008), the Court ordered NVS Tobacco to provide security in an amount of $20,000 for BAT’s costs of and incidental to responding to the applicant’s appeal. On 8 December 2010, the Court ordered NVS Tobacco to provide further security of $89,000 for the respondent’s costs of and incidental to the future conduct and trial of the action. On 9 December 2008 and 27 January 2010, those amounts were paid into Court.
On 24 November 2013, BAT’s costs pursuant to the costs orders were taxed and allowed in these amounts: $660,086.91 in respect of NVS Tobacco’s unsuccessful appeal from the decision of the delegate and $56,464.15 in respect of NVS Tobacco’s unsuccessful application for leave to appeal from the primary orders.
On 3 October 2013, the solicitors for BAT caused a letter to be sent to the solicitors on the record for NVS Tobacco, Bennett & Philp, serving the Certificates of Taxation. BAT’s solicitors proposed by that letter that consent orders be made making provision for the release to BAT of the funds held by the Court as security for costs and that those monies be applied in part satisfaction of BAT’s costs. On 9 October 2013, the solicitors for BAT advised Bennett & Philp, by email, that the Brisbane Registry of the Federal Court had advised BAT’s solicitors that the amount held by the Court (including interest) as at 1 October 2013 was $123,344.13.
On 9 October 2013, BAT’s solicitors received an email from Mr Bennett of Bennett & Philp confirming that Mr Bennett had received the letter of 3 October 2013 and the email of 9 October 2013 but that no response could be provided until Bennett & Philp received instructions from NVS Tobacco. BAT’s solicitors received an email from Mr Bennett on 13 November 2013 advising that Bennett & Philp had not received any further instructions from NVS Tobacco in the matter. It seems that no further exchanges took place between November 2013 and March 2015 in the matter. The delay in proceeding with the present application for orders that the monies held by the Court be paid out of Court to BAT is partly explained by the fact that BAT’s in‑house legal personnel changed a number of times between November 2013 and March 2015. In any event, on 2 March 2015, BAT’s solicitors sent a further letter to Bennett & Philp advising that as Mr Bennett did not have instructions to consent to any orders for payment out of Court of the security funds, an application would be made to the Court for appropriate orders.
These proceedings are concerned with that application.
Although Bennett & Philp have not been able to obtain instructions from NVS Tobacco, Bennett & Philp accept, as a matter of principle, the monies ought to be paid out of Court to BAT or its solicitors. Bennett & Philp have expressed the view that the costs of the application for payment out of the funds ought not to be ordered against NVS Tobacco as the costs seem excessive and secondly, the question of payment out ought to have been addressed by BAT much earlier in time with the result that the costs incurred in making the present application might have been avoided.
The application for payment out was supported by an affidavit sworn by Mr Stephen Stern of Corrs Chambers Westgarth, the solicitors for BAT. In that affidavit, Mr Stern sets out the basis upon which the costs of preparing the application have been calculated. I have had regard to that material and propose to make the following orders. First, the monies held in Court are to be paid out of Court to BAT by payment to its solicitors. Second, NVS Tobacco will be ordered to pay the costs of the application for payment out in an amount of $2,200.00. Third, the application is dealt with on the papers and judgment on the application is published from Chambers. I am not satisfied that the delay in bringing the present application is a basis upon which BAT ought to be deprived of reasonable costs of making the application. I have discounted the assessment of the costs set out in Mr Stern’s affidavit in an attempt to reflect what might be the party and party costs of the application.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 2 July 2015
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