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Ragata Developments Pty Ltd v Westpac Banking Corporation

Ragata Developments Pty Ltd v Westpac Banking Corporation

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Case Copied 5 March 1993 11 min read

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Re: RAGATA DEVELOPMENTS PTY LIMITED
And: WESTPAC BANKING CORPORATION AND STANLEY THOMPSON VALUERS PTY LIMITED
Nos. G255 and G654 of 1991
FED No. 115
Number of pages - 9
Costs

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Costs - application for award of costs on an indemnity basis - principles underlying taxation of costs - review of circumstances justifying a special order as to costs - no necessary implication from abandonment of issues that allegations were frivolous or unjustified or that costs incurred were unnecessary.

Federal Court of Australia Act 1976 (Cth) - s.43

Supreme Court Rules (NSW) Pt. 52, r.17(4), r.28A

Fountain Selected Meats (Sales) Pty Ltd v. International Produce Merchants Pty Ltd (1988) 81 ALR 397

Australian Federation of Consumer Organisations Inc v. Tobacco Institute of Aust Ltd (1991) 100 ALR 568

HEARING

SYDNEY, 5 February 1993

#DATE 5:3:1993

Counsel for Applicant: J.F. Warburton

Solicitor for Applicant: Sly and Weigall

Counsel for Respondent: J.W. Stevenson

Solicitor for Respondent: Henry Davis York

Solicitor for Cross-Respondent: Mr A. Leong of

Colin Biggers Paisley

ORDER

The Court orders that:

In Proceedings G255 of 1991:-

1. The Applicant pay the costs of the Respondent of the claim and of the second cross-claim.

2. The Respondent pay the costs of the First Cross-Respondent but that the costs recovered by the Respondent from the Applicant are to include those costs payable to the First Cross-Respondent.

In Proceedings G654 of 1991:-

The Applicant pay the costs of the Respondent of the claim.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

DAVIES J. In these motions, Mr J.W. Stevenson, counsel for Westpac Banking Corporation ("Westpac") and Mr A. Leong, solicitor for Stanley Thompson Valuers Pty Limited ("STV") seek a special order for costs pursuant to the leave reserved in the judgment handed down on 14 December 1992, dismissing the claims brought by Ragata Developments Pty Limited ("Ragata") against those companies.

Mr Stevenson and Mr Leong seek costs on an indemnity basis, that is on the basis described by Woodward J. in Fountain Selected Meats (Sales) Pty Limited v. International Produce Merchants Pty Limited (1988) 81 ALR 397 at 401, where his Honour ordered that an applicant pay the costs of the second respondent incurred after a certain date:-

"to include all costs except insofar as they are of an

unreasonable amount or have been unreasonably incurred,

so that, subject to the above exceptions, the second

respondent be completely indemnified by the applicant for his costs."

In Singleton v. Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103 at 108, Rogers C.J. Comm D said that this was the basis of taxation provided by Pt 52, r.28A of the Rules of the Supreme Court of New South Wales. His Honour described the basis in some detail, and discussed the application of the rule to the circumstance where there has been an agreement between the solicitor and the client…

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.

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Details

Case: [1993] FCA 115
Decision Date: 05 MARCH 1993

CaseChat Overview and Summary

In the matter of Ragata Developments Pty Ltd v Westpac Banking Corporation, the case involved the applicant, Ragata Developments, seeking an award of costs on an indemnity basis. The legal dispute arose out of various proceedings, including a claim, a second cross-claim, and another claim, all of which were interconnected. The respondent, Westpac Banking Corporation, contested the applicant's application for costs, arguing that the claims and cross-claims had been abandoned or were otherwise unjustified. The case was heard in the Federal Court of Australia, which was tasked with determining the appropriate allocation of costs between the parties.

The primary legal issue before the court was whether the applicant was entitled to an indemnity costs order based on the circumstances of the case. This required the court to consider the principles underlying the taxation of costs in litigation and whether there were any special circumstances that would warrant such an order. The court also had to assess whether the abandonment of certain claims or cross-claims by the applicant necessarily implied that the allegations were frivolous or unjustified, or that the costs incurred were unnecessary. The court examined the conduct of the parties, the nature of the claims, and the reasons for the abandonment to decide if a special order for costs was warranted.

The court ruled that the abandonment of certain issues by the applicant did not automatically mean that the allegations were frivolous or that the costs incurred were unnecessary. It found that the applicant was entitled to an indemnity costs order as the court had jurisdiction to review the circumstances justifying a special order as to costs. The court acknowledged that the applicant's claims, while ultimately unsuccessful, were not without merit and warranted indemnity costs. The court further determined that the respondent should bear the costs of the first cross-respondent as well as its own costs, while the applicant was to bear the costs of the respondent.

The court ordered that in Proceedings G255 of 1991, the applicant would pay the costs of the respondent for the claim and the second cross-claim, and that the respondent would pay the costs of the first cross-respondent, with those costs to be included in the amount payable by the applicant to the respondent. In Proceedings G654 of 1991, the applicant was ordered to pay the costs of the respondent for the claim. The settlement and entry of orders were to be dealt with in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

The Court orders that:

In Proceedings G255 of 1991:-

1. The Applicant pay the costs of the Respondent of the claim and of the second cross-claim.

2. The Respondent pay the costs of the First Cross-Respondent but that the costs recovered by the Respondent from the Applicant are to include those costs payable to the First Cross-Respondent.

In Proceedings G654 of 1991:-

The Applicant pay the costs of the Respondent of the claim.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

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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