Russo v Buck & Ors (No 5)

In the Federal Circuit Court, the plaintiff, Russo, brought an action against multiple defendants, including Buck and others, with the deceased defendant being one of them. The primary disputes involved the procedural aspects of the case, including the appointment of a representative for the deceased defendant and the fixation of a lump sum for costs. The court had to address whether a representative could be appointed under section 87R 30.03 for a deceased defendant who had not yet had an estate administered, and whether a lump sum for costs could be fixed under section 6R 271(6)(c) given the complexity of cost apportionment among the defendants. Furthermore, the court considered an application for interim allocaturs pending the finalisation of adjudication.

The legal issues before the court were whether section 87R 30.03 allowed for the appointment of a representative seeking a judgment for costs, and if so, who would bear the costs. Additionally, the court needed to determine the principles to apply in fixing a lump sum for costs when there was significant difficulty in apportioning costs between different defendants. Lastly, the court had to decide whether an interim allocatur for payment on account of costs could be issued under section 6R 274(2)(b)(ii).

The court found that section 87R 30.03 did not extend to appointing a representative who was seeking a judgment for costs, and thus the application was refused. In considering the lump sum fixation, the court held that given the difficulty in apportioning costs between the different defendants and the varying terms of the costs orders, no lump sum fair to the plaintiff could be fixed. Consequently, the application for lump sum fixation was also refused. Regarding the interim allocaturs, the court granted an order for payment on account of costs to issue for $59,567 pending the finalisation of the adjudication.

The final orders made by the court included the refusal of the application to appoint a representative for the deceased defendant and the refusal of the application for lump sum fixation. An interim order for payment on account of the costs to issue was granted in the amount of $59,567.