Olivaylle Pty Ltd v Flottweg GMBH & CO KGAA (No 6)

Case [2011] FCA 688

FEDERAL COURT OF AUSTRALIA

Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 6) [2011] FCA 688

Citation: Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 6) [2011] FCA 688
Parties: OLIVAYLLE PTY LTD (ACN 080 670 640) (ADMINISTRATORS APPOINTED) v FLOTTWEG AG (FORMERLY FLOTTWEG GMBH & CO KGAA) (ABN 95 101 547 424)
File number: SAD 261 of 2006
Judge: LOGAN J
Date of judgment: 17 June 2011
Catchwords: COSTS – application to fix costs in a gross sum – where costs already awarded to successful party – where case involved complex points of law and fact – where unsuccessful party in administration – where amounts determined by costs assessor were inherently reasonable – costs fixed in gross sum
Legislation: Corporations Act 2001 (Cth) s 440D, Pt 5.3A
Judiciary Act 1903 (Cth) s 55B
Trade Practices Act 1974 (Cth) s 52
Federal Court Rules O 62 r 3(1), O 62 r 4(2)(c), O 62 r 19
Cases cited: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 applied
Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA [2010] FCAFC 62 cited
Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4) (2009) 255 ALR 632 cited
Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 5) [2009] FCA 571 cited
Seven Network Limited v News Limited [2007] FCA 2059 applied
Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) [2011] FCA 661 applied
Date of hearing: 28 March 2011
Place: Brisbane (via videolink to Adelaide and Sydney)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 22
Counsel for the Applicant: The Applicant did not appear
Counsel for the Respondent: Mr M Hoffmann QC
Solicitor for the Respondent: Baker & Mackenzie

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 261 of 2006
BETWEEN:

OLIVAYLLE PTY LTD (ACN 080 670 640) (ADMINISTRATORS APPOINTED)
Applicant
AND:

FLOTTWEG AG (FORMERLY FLOTTWEG GMBH & CO KGAA) (ABN 95 101 547 424)
Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

17 JUNE 2011

WHERE MADE:

BRISBANE (VIA VIDEOLINK TO ADELAIDE AND SYDNEY)

THE COURT ORDERS THAT:

1.Pursuant to Federal Court Rules, O 62 r 4(2)(c):

(a)the respondent is entitled, as against the applicant, in respect of all its costs of and incidental to the proceedings in the original jurisdiction, including those ordered to be paid on an indemnity basis, but exclusive of those of and incidental to the application for the fixing of its costs in a gross sum, to a gross sum of $1,102,500.00 instead of taxed costs; and

(b)the costs as so fixed are subject to the set off provided for by the order of 28 May 2009 in respect of costs awarded in favour of the applicant.

2.The applicant is to pay the respondent’s costs of and incidental to the application for the fixing in gross of its costs.

3.Pursuant to Federal Court Rules, O 62 r 4(2)(c), the respondent’s costs of and incidental to that…

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AGLC
Olivaylle Pty Ltd v Flottweg GMBH & CO KGAA (No 6) [2011] FCA 688
Case
[2011] FCA 688
Decision Date

CaseChat Overview and Summary

The case of Olivaylle Pty Ltd v Flottweg GMBH & CO KGAA (No 6) involved the application for the fixing of costs in a gross sum. The respondent, Flottweg GMBH & CO KGAA, sought to have the costs of the proceedings determined in a gross sum rather than through taxation. The applicant, Olivaylle Pty Ltd, was in the process of administration and had previously been awarded costs on an indemnity basis. The case presented complex points of both law and fact, leading to a consideration of the inherent reasonableness of the amounts determined by the costs assessor.

The primary legal issue before the court was whether the costs of the proceedings should be fixed in a gross sum as opposed to being taxed. This involved an assessment of the nature and complexity of the case, the position of the applicant, and the inherent reasonableness of the costs already determined by the costs assessor. The court had to consider whether fixing the costs in a gross sum would be appropriate in the circumstances, given the extensive and intricate nature of the litigation.

The court found that the case involved significant complexity and that the costs already awarded to the successful party were inherently reasonable. Given the applicant's status in administration, the court determined that fixing the costs in a gross sum was appropriate. The court acknowledged the inherent reasonableness of the amounts determined by the costs assessor and concluded that this approach would be just and equitable. Consequently, the respondent was awarded a gross sum of $1,102,500.00 for its costs of and incidental to the proceedings. Additionally, the respondent's costs of and incidental to the application for the fixing of its costs in a gross sum were fixed in the gross sum of $8,500.00.

In summary, the court fixed the respondent's costs in a gross sum, taking into account the complexity of the case and the inherent reasonableness of the costs assessed. The court also ordered that the applicant pay the respondent’s costs of and incidental to the application for the fixing in gross of its costs.

Orders

Orders of the court

1. Pursuant to Federal Court Rules, O 62 r 4(2)(c):

(a) the respondent is entitled, as against the applicant, in respect of all its costs of and incidental to the proceedings in the original jurisdiction, including those ordered to be paid on an indemnity basis, but exclusive of those of and incidental to the application for the fixing of its costs in a gross sum, to a gross sum of $1,102,500.00 instead of taxed costs; and

(b) the costs as so fixed are subject to the set off provided for by the order of 28 May 2009 in respect of costs awarded in favour of the applicant.

2. The applicant is to pay the respondent’s costs of and incidental to the application for the fixing in gross of its costs.

3. Pursuant to Federal Court Rules, O 62 r 4(2)(c), the respondent’s costs of and incidental to that application are fixed in the gross sum of $8,500.00.

4. Liberty to apply, either in respect of the fixing of such costs as have been awarded in favour of the applicant or otherwise, is reserved to each party (including in respect of the applicant its administrators and any liquidator who may come to be appointed) on two clear business days’ notice.

5. To the extent that any subsisting order provides for taxation of the respondent’s costs, that order is vacated.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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