Portland Marketing (International) Pty Ltd v Wulff T/As Razorpit Australia

[2016] FCCA 1012

FEDERAL CIRCUIT COURT OF AUSTRALIA

PORTLAND MARKETING (INTERNATIONAL) PTY LTD v WULFF T/AS RAZORPIT AUSTRALIA & ORS [2016] FCCA 1012

Catchwords:
COSTS – Costs of interlocutory application – relevance of Court’s event- related fixed scale of costs in such circumstances.

Legislation: 

Federal Circuit Court Rules 2001, r.15.03, items 3, 12 and 13 of pt.1 of sch.1

Applicant: PORTLAND MARKETING (INTERNATIONAL) PTY LTD
(ACN 104 765 639)

First Respondent: HENRIK WULFF TRADING AS RAZORPIT AUSTRALIA

Second Respondent: UNITY AGENCIES PTY LTD
(ACN 010 894 943)

Third Respondent: FIRTAL BRANDS APS

File Number: SYG 3055 of 2014

Judgment of: Judge Cameron

Hearing date: Decided on the papers

Date of Last Submission: 18 April 2016

Delivered at: Sydney

Delivered on: 2 May 2016

REPRESENTATION

Counsel for the Applicant: Mr G. Stapleton

Solicitors for the Applicant: Hunter Flood Lawyers

Counsel for the Respondents: Mr M.D Evans

Solicitors for the Respondents: McKays

ORDERS

1. The respondents pay the applicant’s costs of the respondents’ application in a case dated 30 March 2016 fixed in the sum of $2133.00.

2. The costs ordered in order 1 be paid within twenty-one days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3055 of 2014

PORTLAND MARKETING (INTERNATIONAL) PTY LTD (ACN 104 765 639)

Applicant

And

HENRIK WULFF TRADING AS RAZORPIT AUSTRALIA

First Respondent

UNITY AGENCIES PTY LTD (ACN 010 894 943)

Second Respondent

FIRTAL BRANDS APS

Third Respondent

REASONS FOR JUDGMENT

1. On 7 April 2016 the respondents were granted leave to file a further amended defence and on 14 April 2016 were ordered to pay the applicant’s costs of the application to amend which had been made in their application in a case dated 30 March 2016. The parties agreed that the quantification of those costs could be undertaken without an oral hearing: r.15.03 Federal Circuit Court Rules 2001 (“Rules”).

2. The applicant provided itemised breakdowns of the fees charged by its counsel and solicitors in connection with the application to amend. The respondents filed short written submissions arguing that the applicant’s claim included matters which were not properly party and party costs related to the application to amend. They also submitted that the individual and total amounts claimed by the applicant were much greater than the amounts provided by the Court’s event-based scale of costs set out in pt.1 of sch.1 to the Rules and consequently were excessive.

3. The total amount claimed by the applicant was $7106.

4. The applicant sought an interlocutory judicial assessment of costs rather than a taxation by a registrar pursuant to the Federal Court scale which might have been available given that the complexity and size of this case suggests that taxation rather than assessment would be the appropriate method to determine costs payable in relation to it.  Assessment has the benefit of being simpler and quicker than taxation but should be undertaken by reference to this Court’s scale absent good reasons to do otherwise.  The applicant did not argue that the scale should not apply albeit such a position was implicit in the breakdown of fees it provided in support of its claim for costs.  Good reason for doing otherwise not having been shown, it is appropriate that the quantification of the costs awarded on 14 April 2016 be undertaken by reference to the Court’s scale. 

5. This proceeding was commenced on 4 November 2014 and so the applicable scale is the one which commenced on 23 October 2014 and continues in force.  The scale’s item 3 (interim hearing as a discrete event), item 12 (loading for counsel) and item 13(b) (daily hearing fee for a half day hearing) are relevant to the present application.  Item 3 allows $1706 for the work associated with an interlocutory application which is undertaken other than in court.  Item 13(b) allows $1024 for attendance at a half day hearing and item 12 allows a 50% uplift on the daily hearing fee for counsel.

6. The respondents submitted that because the Court considered a number of issues on 7 April 2016 costs should be apportioned accordingly.  I agree that that is the correct approach as it is required by another order made on 14 April 2016.  I find that the costs associated with the amendments sought by the respondents represented half of the costs incurred by the applicant in responding to the respondents’ application in a case dated 30 March 2016 and that the costs payable should be half of the applicable scale amounts.

7. Taking account of that apportionment and of the fact that the applicant’s counsel and solicitor were present on 7 April 2016, I assess the costs payable by the respondents in connection with their application to amend the defence to be $2133.

8. The applicant sought an order that those costs be paid before the hearing listed to commence on 2 May 2016.  In the circumstances, such an order is not practical but the respondents did concede that costs should be payable within twenty-one days.  There will be an order accordingly.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  2 May 2016