Natch v Stennson Pty Ltd (No 3)

Case [2025] FCA 472

FEDERAL COURT OF AUSTRALIA

Natch v Stennson Pty Ltd (No 3) [2025] FCA 472

File numbers: VID 569 of 2019
VID 720 of 2021
Judgment of: O'BRYAN J
Date of judgment: 15 May 2025  
Catchwords: COSTS – where application for review of a Registrar’s decision to dismiss an application for discovery dismissed with costs – where costs ordered to be paid on a lump sum basis – assessment of quantum – whether and to what extent a solicitor’s cost can be recovered when the solicitor’s name is not entered on the Register of Practitioners kept by the Registry of the High Court
Legislation:

Federal Court of Australia Act (1976) ss 37N, 43

Judiciary Act 1903 (Cth) ss 55B, 55C, 79

Federal Court Rules 2011 (Cth) rr 40.01, 40.02, 40.18, 40.34
Cases cited:

Australian Trade Commission v Disktravel [2000] FCA 62

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119

Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53

Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52

Guss v Veenhuizen (No 2) (1976) 136 CLR 47

Innes v AAL Aviation Ltd (No 2) [2018] FCAFC 130

Jadwan Pty Ltd v Rae & Partners (A Firm) (No 7) [2022] FCA 1174

Jadwan Pty Ltd v Rae & Partners (A Firm) [2023] FCAFC 182

Kazar v Kargarian (2011) 197 FCR 113

Natch v Stennson Pty Ltd (No 2) [2024] FCA 1498

Natch v Stennson Pty Ltd (No 4) [2025] FCA 473

Natch v Stennson Pty Ltd [2025] FCA 69

Oshlack v Richmond River Council (1998) 193 CLR 72

Paciocco v Australia and New Zealand Banking Group Ltd (No 2) (2017) 253 FCR 403

Seven Network Limited v News Limited [2007] FCA 2059

Sharif v Vitruvian Investments Pty Ltd (No 5) [2024] FCA 134

The State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174

University of Western Australia v Gray (No 25) (2009) 180 FCR 483
Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 71
Date of last submissions: 28 March 2025
Solicitors for the First Applicant: TLM Law until 10 February 2025
The First Applicant was self-represented from 10 February 2025
Counsel for the Second and Third Applicants: O K Wolahan
Solicitors for the Second and Third Applicants: TLM Law
Solicitors for the Respondent: KCL Law

ORDERS

VID 569 of 2019
BETWEEN:

MOHAN NATCH

First Applicant

MOHAN NATCH AND KARAN NATCH (AS EXECUTORS AND TRUSTEEES OF THE WILL OF ANDAL NATCH)

Second Applicant

OWNERS CORPORATION PLAN NO SP026738V

Third Applicant
AND:

STENNSON PTY LTD (ACN 109 103 559)

Respondent

ORDER MADE BY:

O'BRYAN J

DATE OF ORDER:

15 MAY 2025

THE COURT ORDERS THAT:

1.The costs payable by the applicants to the respondent pursuant to order 2 of the orders of the Court made on 20 December 2024 in this proceeding and in proceeding VID 720 of 2021 are quantified in the amount of $19,917.09.

2.The costs…

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Details
AGLC
Natch v Stennson Pty Ltd (No 3) [2025] FCA 472
Case
[2025] FCA 472
Decision Date

CaseChat Overview and Summary

Natch v Stennson Pty Ltd (No 3) was a case where the applicants, Natch, sought a review of a decision by a Registrar to dismiss an application for discovery. The decision also dealt with the assessment of costs awarded to Stennson, the respondents, who had filed an affidavit to support their claim. The applicants filed affidavits and written submissions after the Court's timetabling orders had expired, which led to a discussion on whether these submissions should be considered. Stennson argued that the principal solicitor for Natch, Mr Cain of KCL Law, did not have his name on the High Court Register, which raised questions about the recoverability of some of the costs claimed. The case was heard by the Federal Court, which had to determine whether the applicants' late submissions should be considered and the appropriate quantum of costs to be awarded to Stennson.

The legal issues the Court had to decide were whether the late-filed submissions from the applicants should be considered and the proper quantum of costs to be awarded to Stennson, taking into account the issue raised by the applicants about the solicitor's registration status. The Court also had to decide on the significance of the solicitor's name not being on the High Court Register for the purposes of the costs assessment.

In its decision, the Court determined that the applicants' late-filed submissions would be considered, despite the non-compliance with the Court’s timetabling orders. The Court assessed the costs payable by the applicants to Stennson in a lump sum of $19,917.09, comprising fees for counsel, solicitors, and disbursements. The Court found that a single order could be made in the principal proceeding, as the issues raised were not differentiated between the proceedings. The Court also noted that Stennson should be given an opportunity to reply to the issues raised by the applicants, which was subsequently granted.

The Court ordered that the costs payable by the applicants to the respondents be quantified in the amount of $19,917.09 and be paid within 14 days of the date of the order. The Court's decision provided clarity on the recoverability of costs where a solicitor's name is not on the Register of Practitioners and the handling of late-filed submissions in such cases.

Orders

Orders of the court

1. The costs payable by the applicants to the respondent pursuant to order 2 of the orders of the Court made on 20 December 2024 in this proceeding and in proceeding VID 720 of 2021 are quantified in the amount of $19,917.09.

2. The costs referred to in paragraph 1 be paid within 14 days of the date of this order.

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

For the reasons that follow, I have determined that the quantum of costs payable by the applicants to Stennson in respect of the discovery review is $19,917.09.Evidence adduced on the discovery review costs assessmentOverview In compliance with the Court’s timetabling orders, on 31 January 2025 Stennson filed and served an affidavit with respect to the discovery review costs assessment affirmed by its solicitor, Darren Frank Cain of KCL Law. Stennson elected not to file written submissions. I take the affidavit as read on the question of costs. The applicants did not comply with the Court’s timetabling orders. They filed the following materials in respect of the discovery review costs assessment:(a)two affidavits sworn by Mr Natch on 10 February 2025;(b)a written submission of Mr Natch dated 11 February 2025 comprising 10 pages; and(c)a written submission on behalf of the second and third applicants dated 11 February 2025 comprising 3 pages. In one of his affidavits dated 10 February 2025, Mr Natch adduced evidence that the principal solicitor for Stennson, Mr Cain of KCL Law, did not have his name entered on the High Court Register. This was the first time that this issue had been raised. Mr Natch filed a further affidavit sworn on 17 February 2025 which largely replicated the 10 February 2025 affidavit and raised the same issue. It was not entirely clear whether the latter affidavit was intended to be relied on in respect of the discovery review costs assessment or in respect of the taxation review (or both). Ultimately, I treated the affidavit as read on both applications. All of the applicants’ materials were filed after the time allowed by the timetabling orders made on 20 December 2024. Additionally, the length of Mr Natch’s submission (at 10 pages) greatly exceeded what was allowed under those orders. As discussed below, Mr Natch’s submissions largely re-agitated arguments advanced before the Registrar and on the discovery review application. As such, they were largely irrelevant to the quantification of the costs to be awarded under the discovery review costs assessment. Despite the non-compliance with the Court’s orders, I determined that the materials filed on behalf of the applicants would be taken into account in the discovery review costs assessment. My chambers notified the parties of that decision on 13 February 2025. I also formed the view that Stennson should be given an opportunity to reply, by way of submissions and evidence in reply, to two matters raised by the applicants’ materials, being:(a)whether Mr Cain’s name appears in the High Court Register and, if not, the significance of that fact for the award of costs in favour of Stennson; and(b)the appropriate discount to be applied to the costs incurred by Stennson to reflect an award of costs on a party and party basis. Stennson was given leave to file a submission and evidence in reply, limited to those two issues, by 4.00 pm on 18 February 2025. Stennson sought additional time for the filing of its material, which was granted, and the parties also sought the adjournment of the taxation review (which had been listed for 21 February 2025), which was also granted.

Decision

Reasons for decision

Taking the above into account, I consider that costs should be awarded in a lump sum of $19,917.09 comprising:(a)$13,750 on account of counsel’s fees;(b)$4,000 on account of solicitors fees; and(c)$2,167.09 on account of disbursements (transcript).Conclusion In conclusion, I consider that the costs awarded in favour of Stennson in both the principal proceeding and the appeal proceeding should be assessed in a lump sum in the amount of $19,917.09. A question arises whether the costs should be apportioned between the principal proceeding and the appeal proceeding and separate orders made in each proceeding for a proportion of the costs. In my view, there is no necessity to do so. The proceedings involve the same parties and there was no differentiation between the proceedings in respect of the issues that were raised and needed to be determined. In those circumstances, a single order can be made in the principal proceeding.

Ratio Decidendi

Legal Principle Established

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