Olivaylle Pty Ltd v Flottweg GmbH and Co KGaA (No 8) - [2011] FCA 1073

FEDERAL COURT OF AUSTRALIA
Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 8) [2011] FCA 1073

Citation: Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 8) [2011] FCA 1073

Parties: OLIVAYLLE PTY LTD (ACN 080 670 640) v FLOTTWEG AG (FORMERLY FLOTTWEG GMBH & CO KGAA) (ABN 95 101 574 424)

File number: SAD 261 of 2006

Judge: LOGAN J

Date of judgment: 8 September 2011

Catchwords: COSTS – fixing set off in gross as against non-party – non-party played active part in litigation – set-off fixed in gross – costs awarded jointly and severally against non-party

Legislation: Corporations Act 2001 (Cth) s 444H

Cases cited: Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4) (2009) 255 ALR 632 cited
Olivaylle Pty Ltd v Flottweg GMBH & Co v KGAA (No 5) [2009] FCA 571 cited
Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 6) [2011] FCA 688 cited
Olivaylle v Flottweg GMBH & Co KGAA (No 7) [2011] FCA 689 cited

Date of hearing: 8 September 2011

Place: Brisbane (via videolink to Adelaide)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 18

Solicitor for the Applicant: Minter Ellison Lawyers

Counsel for the Respondent: Mr M Hoffmann QC

Solicitor for the Respondent: Fisher Jeffries Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 261 of 2006

BETWEEN:
OLIVAYLLE PTY LTD (ACN 080 670 640)
Applicant

AND:
FLOTTWEG AG (FORMERLY FLOTTWEG GMBH & CO KGAA) (ABN 95 101 574 424)
Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

8 SEPTEMBER 2011

WHERE MADE:

BRISBANE (VIA VIDEOLINK TO ADELAIDE)

THE COURT ORDERS THAT:
1.Mr Jorge de Moya is taken to have been served with the Interlocutory Application filed 18 August 2011 and supporting material thereto.
2.The set off amount for the purpose of paragraph 1(b) of the orders made in the proceedings on 17 June 2011 is $100,000.
3.The net amount payable by the applicant to the respondent under paragraph 1 of the orders made in these proceedings on 17 June 2011 is $1,002,500.
4.Olivaylle Pty Ltd (Subject to Deed of Company Arrangement) (ACN 080 670 640) and Jorge de Moya jointly and severally pay costs in the amount of $1,002,500 to Flottweg AG (formerly Flottweg GMBH & CO KGAA) (ABN 95 101 547 424).
5.Olivaylle Pty Ltd (Subject to Deed of Company Arrangement) (ACN 080 670 640) and Jorge de Moya jointly and severally pay costs in the amount of $8,500 to Flottweg AG (formerly Flottweg GMBH & CO KGAA) (ABN 95 101 574 424) in respect of the Notice of Motion dated 19 May 2011.
6.Olivaylle Pty Ltd (Subject to Deed of Company Arrangement) (ACN 080 670 640) and Jorge de Moya jointly and severally pay costs fixed in the amount of $12,657 to Flottweg AG (formerly Flottweg GMBH & CO KGAA) (ABN 95 101 547 424) in respect of the Interlocutory Application dated 18 August 2011.
7.These orders to take effect forthwith.

Note:Entry of orders is dealt…

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.

Continue reading Olivaylle Pty Ltd v Flottweg GmbH and Co KGaA (No 8)

Details

AGLC: Olivaylle Pty Ltd v Flottweg GmbH and Co KGaA (No 8) [2011] FCA 1073
Case: [2011] FCA 1073
Decision Date: 8 September 2011

CaseChat Overview and Summary

Olivaylle Pty Ltd and Flottweg GmbH & Co KGaA were involved in a legal dispute which reached the Federal Court. The primary focus of the case was the determination of costs incurred during the litigation process, specifically the calculation and set-off of these costs against a non-party, Mr Jorge de Moya, who had actively participated in the proceedings. The court was tasked with resolving the issue of whether the set-off amount should be calculated in gross or in net terms, and whether the costs should be apportioned jointly and severally among the parties.

The legal issues before the court included the appropriate method for calculating the set-off amount and whether the costs should be fixed in gross or in net terms. Additionally, the court needed to determine the extent of Mr de Moya's liability for the costs, given his active involvement in the litigation. The court considered the principles of fairness and the precedents set in similar cases to decide these matters.

In its reasoning, the court found that the set-off amount should be calculated in gross, meaning that the total costs should be considered without deducting any amounts that might have been recovered from non-parties. The court also ruled that the costs should be awarded jointly and severally against Olivaylle Pty Ltd and Mr de Moya. This decision was based on the active role Mr de Moya played in the litigation, which made him equally responsible for the costs incurred. The court ordered that the net amount payable by Olivaylle Pty Ltd to Flottweg AG, after set-off, was $1,002,500. Furthermore, additional costs were awarded against Olivaylle Pty Ltd and Mr de Moya for specific legal actions taken by Flottweg AG.

The final orders mandated that Mr de Moya be deemed served with the relevant documents, set the set-off amount at $100,000, and fixed the net amount payable by Olivaylle Pty Ltd to Flottweg AG. It also directed that Olivaylle Pty Ltd and Mr de Moya jointly and severally pay specified amounts to Flottweg AG for various costs related to the litigation. These orders were to take immediate effect, as per the Federal Court Rules.

Orders

Orders of the court

1. Mr Jorge de Moya is taken to have been served with the Interlocutory Application filed 18 August 2011 and supporting material thereto.

2. The set off amount for the purpose of paragraph 1(b) of the orders made in the proceedings on 17 June 2011 is $100,000.

3. The net amount payable by the applicant to the respondent under paragraph 1 of the orders made in these proceedings on 17 June 2011 is $1,002,500.

4. Olivaylle Pty Ltd (Subject to Deed of Company Arrangement) (ACN 080 670 640) and Jorge de Moya jointly and severally pay costs in the amount of $1,002,500 to Flottweg AG (formerly Flottweg GMBH & CO KGAA) (ABN 95 101 547 424).

5. Olivaylle Pty Ltd (Subject to Deed of Company Arrangement) (ACN 080 670 640) and Jorge de Moya jointly and severally pay costs in the amount of $8,500 to Flottweg AG (formerly Flottweg GMBH & CO KGAA) (ABN 95 101 574 424) in respect of the Notice of Motion dated 19 May 2011.

6. Olivaylle Pty Ltd (Subject to Deed of Company Arrangement) (ACN 080 670 640) and Jorge de Moya jointly and severally pay costs fixed in the amount of $12,657 to Flottweg AG (formerly Flottweg GMBH & CO KGAA) (ABN 95 101 547 424) in respect of the Interlocutory Application dated 18 August 2011.

7. These orders to take effect forthwith.

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

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Ratio Decidendi

Legal Principle Established

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Citation:		Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 8) [2011] FCA 1073
Parties:		OLIVAYLLE PTY LTD (ACN 080 670 640) v FLOTTWEG AG (FORMERLY FLOTTWEG GMBH & CO KGAA) (ABN 95 101 574 424)
File number:		SAD 261 of 2006
Judge:		LOGAN J
Date of judgment:		8 September 2011
Catchwords:		COSTS – fixing set off in gross as against non-party – non-party played active part in litigation – set-off fixed in gross – costs awarded jointly and severally against non-party
Legislation:		Corporations Act 2001 (Cth) s 444H
Cases cited:		Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4) (2009) 255 ALR 632 cited Olivaylle Pty Ltd v Flottweg GMBH & Co v KGAA (No 5) [2009] FCA 571 cited Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 6) [2011] FCA 688 cited Olivaylle v Flottweg GMBH & Co KGAA (No 7) [2011] FCA 689 cited
Date of hearing:	8 September 2011
Place:	Brisbane (via videolink to Adelaide)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	18
Solicitor for the Applicant:	Minter Ellison Lawyers
Counsel for the Respondent:	Mr M Hoffmann QC
Solicitor for the Respondent:	Fisher Jeffries Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 261 of 2006

BETWEEN:	OLIVAYLLE PTY LTD (ACN 080 670 640) Applicant
AND:	FLOTTWEG AG (FORMERLY FLOTTWEG GMBH & CO KGAA) (ABN 95 101 574 424) Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	8 SEPTEMBER 2011
WHERE MADE:	BRISBANE (VIA VIDEOLINK TO ADELAIDE)