NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480
Practice and Procedure
(2001) 109 FCR 77
FEDERAL COURT OF AUSTRALIA
NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480
PRACTICE AND PROCEDURE – Costs – indemnity costs – circumstances in which indemnity costs will be ordered – applicant, having paid out claims of investors in applicant’s property trust, seeking to recover contribution or indemnity from bank which financed them into the investment – applicant fails in claim and must pay bank’s costs – whether it should be ordered to do so on an indemnity basis – suggested ethical or moral delinquency of applicant – whether ethical or moral delinquency in the underlying or background facts sufficient to support order for indemnity costs or whether ethical or moral delinquency must be associated with the commencement or manner of conduct of the litigation – whether case “hopeless” – whether case “fundamentally flawed” – notice to admit facts and notice disputing facts – whether party disputing facts should be ordered to pay costs of proof of the facts disputed
Calderbank v Calderbank [1976] Fam 93 cited
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 cited
Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354 cited
EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59 cited
Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 (FC) cited
Australian Guarantee Corporation Ltdv De Jager [1984] VR 483 distinguished
National Australia Bank v Petit-Breuilh(No 3) [2000] VSC 291 not followed
Harrison v Schipp [2001] NSWCA 13 followed
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 cited
Concrete Constructions Pty Ltd v Government Insurance Office of New South Wales [1966] 2 NSWR 609 cited
Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5 cited
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 cited
MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236 cited
NMFM PROPERTY PTY LIMITED (formerly called “National Mutual Property Services (Australia) Pty Ltd”) v CITIBANK LIMITED (formerly called “Citibank Savings Limited”)
NG 765 of 1994
LINDGREN J
27 APRIL 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 765 OF 1994
BETWEEN: NMFM PROPERTY PTY LIMITED (formerly called “National Mutual Property Services (Australia) Pty Ltd”) FIRST APPLICANT
NATIONAL MUTUAL ASSETS MANAGEMENT LIMITED
SECOND APPLICANT
THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED
THIRD APPLICANT
AND: CITIBANK LIMITED (formerly called “Citibank Savings Limited”) RESPONDENT
FIRST CROSS-CLAIM
CITIBANK LIMITED (formerly called “Citibank Savings Limited”)
CROSS-CLAIMANT
[Lance Kelly Financial Management Pty Ltd, removed as a party]
FIRST CROSS-RESPONDENT
LANCE…
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