FEDERAL COURT OF AUSTRALIA
Ponraj v Wycombe Services Pty Ltd (No 2) [2023] FCA 272
File number(s): VID 727 of 2020 Judgment of: MCELWAINE J Date of judgment: 27 March 2023 Catchwords: COSTS – whether an order for indemnity costs should be made – where respondent/cross-claimant made offers by Calderbank letters and notice of offer to compromise – where applicant/cross-respondent was unsuccessful in claim and cross-claim – indemnity costs order made pursuant to r 25.14 of the Federal Court Rules 2011 (Cth) Legislation: Federal Court of Australia Act 1976 (Cth) ss 43(3)(g), 51A
Federal Court Rules 2011 (Cth) rr 25.14, 39.06, 40.01, 40.02
Cases cited: Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No2) [2018] FCAFC 112
Calderbank v Calderbank [1975] 3 All ER 333
Coshott v Prentice (No 2) [2018] FCAFC 221
Ponraj v Wycombe Services Pty Ltd [2023] FCA 118 Zibara v Ultra Management (Sports) Pty Ltd [2021] FCAFC 4
Federal Court of Australia, Costs Practice Note (GPN-Costs)
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of hearing: On the papers Date of last submissions Respondent: 8 March 2023 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms J Alderson Solicitor for the Respondent: Seyfarth Shaw Australia ORDERS
VID 727 of 2020 BETWEEN: DHANDAPANI PONRAJ
Applicant
AND: WYCOMBE SERVICES PTY LTD
First Respondent
CORNERSTONE HEALTH PTY LTD
Second Respondent
AND BETWEEN: WYCOMBE SERVICES PTY LTD
Cross-Claimant
AND: DHANDAPANI PONRAJ
Cross-Respondent
ORDER MADE BY:
MCELWAINE J
DATE OF ORDER:
27 MARCH 2023
THE COURT ORDERS THAT:
1.There be judgment for the respondent/cross-claimant against the applicant/cross-respondent in the sum of $615,020.23, comprising judgment of $574,248.58 and interest of $40,771.65 pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth), which judgment carries interest 60 days from the date of this order at the rate prescribed in r 39.06(a) and (b) of the Federal Court Rules 2011 (Cth).
2.The applicant/cross-respondent pay the respondent/cross-claimant’s costs of the claim and cross-claim:
(a)on a party and party basis up to 10.59 am on 1 June 2022 pursuant to r 40.01 of the Federal Court Rules 2011 (Cth); and
(b)on an indemnity basis from 11 am on 1 June 2022, pursuant to r 25.14 of the Federal Court Rules 2011 (Cth).
3.The assessment of the costs orders in order 2 is to be made by way of the lump sum costs procedure pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).
4.The Registrar of the Court is directed to determine the amount of the respondent/cross-claimant’s costs in such manner as the Registrar deems fit, and shall then make an order for fixing the amount of those costs, which are to be payable within 28 days of such orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCELWAINE J:
I published my reasons for judgment in this matter on 22 February…
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- Case
- [2023] FCA 272
- Decision Date
CaseChat Overview and Summary
The court considered whether an order for indemnity costs should be made under the Federal Court Rules 2011 (Cth). The court noted that indemnity costs may be awarded if the party against whom the order is sought has acted vexatiously, unreasonably or without merit. In this case, the court found that the applicant had acted unreasonably and without merit in pursuing the claim and cross-claim, particularly given the respondent's offers to compromise. The court also noted that the applicant had not provided a satisfactory explanation for its conduct.
Accordingly, the court made an order for indemnity costs pursuant to rule 25.14 of the Federal Court Rules 2011 (Cth). The order required the applicant to pay the respondent's costs of the claim and cross-claim on a party and party basis up until a certain time on 1 June 2022, and on an indemnity basis thereafter. The court also directed the Registrar to determine the amount of the respondent's costs and make an order for their payment within 28 days.
In addition to the costs order, the court made a judgment in favour of the respondent in the sum of $615,020.23, comprising judgment of $574,248.58 and interest of $40,771.65. The judgment carried interest at the prescribed rate for 60 days from the date of the order. The court also noted that entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
Orders
Orders of the court
1. There be judgment for the respondent/cross-claimant against the applicant/cross-respondent in the sum of $615,020.23, comprising judgment of $574,248.58 and interest of $40,771.65 pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth), which judgment carries interest 60 days from the date of this order at the rate prescribed in r 39.06(a) and (b) of the Federal Court Rules 2011 (Cth).
2. The applicant/cross-respondent pay the respondent/cross-claimant’s costs of the claim and cross-claim:
(a) on a party and party basis up to 10.59 am on 1 June 2022 pursuant to r 40.01 of the Federal Court Rules 2011 (Cth); and
(b) on an indemnity basis from 11 am on 1 June 2022, pursuant to r 25.14 of the Federal Court Rules 2011 (Cth).
3. The assessment of the costs orders in order 2 is to be made by way of the lump sum costs procedure pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).
4. The Registrar of the Court is directed to determine the amount of the respondent/cross-claimant’s costs in such manner as the Registrar deems fit, and shall then make an order for fixing the amount of those costs, which are to be payable within 28 days of such orders.
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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