FEDERAL COURT OF AUSTRALIA
Royal v El Ali (No 3) [2016] FCA 1573
File numbers: NSD 1731 of 2013
NSD 771 of 2014Judge: DAVIES J Date of judgment: 22 December 2016 Catchwords: COSTS – application for costs fixed in lump-sum – whether appropriate and practicable to make lump-sum costs order – whether apportionment methodology as between the two proceedings was fair and reasonable – whether there can be a reduction in the amount of inter‑partes costs for failure to comply with requirements of the Legal Profession Act 2004 (NSW) – application of indemnity principle – whether there are costs to be indemnified – whether a joint and several costs order should not be made Legislation: Federal Court (Bankruptcy) Rules 2016 (Cth), r 13.01
Federal Court of Australia Act 1976 (Cth), s 43(3)(d)
Federal Court Rules 2011 (Cth), r 40.02(b)
Legal Profession Act 2004 (NSW), ss 309, 310, 317, 323, 324, 327
Cases cited: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (No 2) [2015] FCA 527; (2015) 106 ACSR 302
Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288
Catto v Hampton Australia (in liq) [2008] SASC 231
Central Queensland Development Corporation Pty Ltd v Sunstruct Pty Ltd [2015] FCAFC 63; (2015) 106 ACSR 127
Fitzpatrick v Keelty (No 2) [2008] FCA 742
Mainieri & Anor v Cirillo [2014] VSCA 227; (2014) 47 VR 127
Mourik v VonMarburg [2016] VSC 601
Perigo v Workers Compensation Nominal Insurer & Anor (No 3) [2013] NSWSC 6
Selliah v Minister for Immigration and Multicultural Affairs [1998] FCA 469
Shaw v Yarranova Pty Ltd & Anor [2010] VSC 567
Sunland Waterfront (BVI) Limited v Prudentia Investments Pty Ltd (No 4) [2013] VSC 669
Tomasetti v Brailey [2012] NSWSC 120
Ventouris Enterprises Pty Ltd v DIB Group Pty Ltd (No 4) [2011] NSWSC 720
Date of hearing: 11 November 2016 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 56 Counsel for the Applicants: C Birch SC with P Thew Solicitors for the Applicants: Watson Mangioni Lawyers Pty Limited Counsel for the First Respondent: R Carey Solicitor for the First Respondent: D Massey Counsel for the Second and Third Respondents in NSD 1731 of 2013 and the Second Respondent in NSD 771 of 2014: D Barlin Solicitors for the Second and Third Respondents in NSD 1731 of 2013 and the Second Respondent in NSD 771 of 2014: Bartier Perry Solicitor for the liquidator of the Fifth Respondent in NSD 1731 of 2013: S McKenzie of Colin Biggers & Paisley Lawyers Counsel for the Sixth Respondent in NSD…
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- AGLC
- Royal v El Ali (No 3) [2016] FCA 1573
- Case
- [2016] FCA 1573
- Decision Date
CaseChat Overview and Summary
The court needed to determine whether it was appropriate and practicable to make a lump-sum costs order in this case, and if so, what the appropriate apportionment between the two proceedings should be. The court also had to consider whether there could be a reduction in the amount of inter-partes costs for the respondents' failure to comply with the Legal Profession Act 2004 (NSW). Furthermore, the court needed to decide whether there were costs to be indemnified, and if a joint and several costs order should be made.
The court concluded that, despite the separate and distinct nature of the transactions, there was a significant commonality of evidence, issues, and facts concerning the impugned transfers of shares and properties. As such, the court found it appropriate to make a joint and several costs order as between the various respondents. The court fixed the costs that the respondents are liable to pay the applicants in the sum of $212,166 for the 2014 proceedings and $442,668 for the 2013 proceedings, which will be payable on a joint and several basis. The respondents' payment of the applicants' costs was stayed until 2 February 2017 or until further order.
The court made the following orders: (1) the respondents pay the applicants' costs fixed in the sum of $212,166, and (2) Order 1 be stayed until 2 February 2017 or until further order. Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The respondents pay the applicants’ costs fixed in the sum of $212,166.
2. Order 1 be stayed until 2 February 2017 or until further order.
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
Ratio Decidendi
Legal Principle Established
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