Ruaro v Ferrari

[2008] FCA 307

FEDERAL COURT OF AUSTRALIA

Ruaro v Ferrari [2008] FCA 307

COSTS – notice of offer of compromise – notice fails to comply with requirements of order 23 – judgment in favour of party making offer – whether party making offer entitled to costs on an indemnity basis

Federal Court Rules, Orders 11 and 23

MARK RUARO AND ANOR v CATHERINE FERRARI AND ANOR
ACN 062 320 870

NSD 936 OF 2005

EMMETT J
8 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 936 OF 2005

BETWEEN:

MARK RUARO
First Plaintiff

SECILIA RUARO
Second Plaintiff

AND:

CATHERINE FERRARI
First Defendant

HOLCOMM MARINE PTY LIMITED t/as HOLMEPORT MARINAS ACN 062 320 870
Second Defendant

JUDGE:	EMMETT J
DATE OF ORDER:	8 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Orders 1 and 2 made on 19 December 2007 be rescinded;

2.There be judgment in favour of Holcomm Marine Pty Limited and the proceeding be dismissed as against Holcomm Marine Pty Limited;

3.The Cross-claim by Holcomm Marine Pty Limited against Mark Ruaro and Secilia Ruaro be dismissed;

4.The Plaintiffs pay the costs incurred by Holcomm Marine Pty Limited in relation to the proceeding other than the Cross-claims and other than the costs referred to in order 5:

4.1Up to and including 10 April 2007 on the party-party basis, and

4.2After 10 April 2007 on the indemnity basis; and

5.Holcomm Marine Pty Limited pay the Plaintiffs’ costs of the Cross-claim referred to in order 3 and the proof of the facts set out at paragraphs 1, 4, 5, 6, and 7 of the notice disputing facts dated 22 March 2006.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 936 OF 2005

BETWEEN:

MARK RUARO
First Plaintiff

SECILIA RUARO
Second Plaintiff

AND:

CATHERINE FERRARI
First Defendant

HOLCOMM MARINE PTY LIMITED t/as HOLMEPORT MARINAS ACN 062 320 870

Second Defendant

JUDGE:

EMMETT J

DATE:

8 FEBRUARY 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. On 19 December 2007, I ordered that this proceeding be dismissed and that the plaintiffs pay the costs of the second defendant (Holcomm Marine) of the proceeding.  However, when I pronounced those orders, the solicitor for Holcomm Marine indicated that it proposed to make an application for a special order as to the costs of the proceeding.  Accordingly, I directed that those orders not be entered before 11 February 2008, directed the parties to make any further submissions regarding costs no later then 1 February 2008 and stood the matter over for further directions today.  Subsequently, written submissions were made, although not in accordance with the direction that I gave on 19 December 2007.  In any event, written submissions have now been received on behalf of both the plaintiffs and Holcomm Marine.  I have also had further oral submissions on behalf of both parties concerning the question of costs. 

2. The issues in…