Salfinger v Niugini Mining (Aust) Pty Ltd (No 5)

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FEDERAL COURT OF AUSTRALIA

Salfinger v Niugini Mining (Aust) Pty Ltd (No 5) [2008] FCA 1119

COSTS – application by respondent for gross sum costs order – claim of insufficient notice – failure to comply with court orders – lack of assets in Australia

Federal Court Rules O 62 r 4

Beach Petroleum v LV Johnson (1995) 57 FCR 119 cited
Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 cited
Ualesi t/a Australian Empire Imports v Expeditors International Pty Ltd [2006] FCA 26 cited

RODERICK NEIL SALFINGER v NIUGINI MINING (AUSTRALIA) PTY LTD and STATE OF QUEENSLAND

VID 1388 OF 2006

HEEREY J
29 JULY 2008
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1388 OF 2006

BETWEEN:

RODERICK NEIL SALFINGER
Applicant

AND:

NIUGINI MINING (AUSTRALIA) PTY LTD
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGE:

HEEREY J

DATE OF ORDER:

29 JULY 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The applicant pay to the first respondent pursuant to the order of 30 March 2007 the sum of $16,774 for costs.

2.The applicant pay to first respondent pursuant to the order of 29 August 2007 the sum of $1,169 for costs

3.The applicant pay to the first respondent pursuant to the order of 18 October 2007 the sum of $81,626 for costs.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1388 OF 2006

BETWEEN:

RODERICK NEIL SALFINGER
Applicant

AND:

NIUGINI MINING (AUSTRALIA) PTY LTD
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGE:

HEEREY J

DATE:

29 JULY 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The first respondent (Niugini Mining) has several cost orders in its favour against the applicant Mr Roderick Salfinger.  The orders were made in favour of Niugini Mining against Mr Salfinger on 30 March 2007 (the Injunction Order), 29 August 2007 (the Adjournment Order) and 18 October 2007 (the Separate Question Order).  Niugini Mining now seeks orders pursuant to O 62 r 4 of the Federal Court Rules that the costs in respect of each of these three orders be assessed as gross sums.

  2. O 62 r 4 relevantly provides as follows: 

    (2)      Where the Court orders that costs be paid to any person, the Court may further order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that person shall be entitled to:

    …

    (c)       a gross sum specified in the order; or

    (d)       a sum in respect of costs to be ascertained in such manner as the Court may direct.

    (3)      The Court may make an order under subrule (2) at any time, whether or not an order that costs be paid to a person has previously been made or entered.

  3. The Chief Justice has issued Practice Note No. 27, which is to the effect that an application under O 62 r 4(2)(c) must be accompanied by an affidavit stating the…

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Details
Case
[2008] FCA 1119
Decision Date

CaseChat Overview and Summary

Salfinger v Niugini Mining (Aust) Pty Ltd (No 5) involves a dispute between Salfinger, the applicant, and Niugini Mining (Aust) Pty Ltd, the respondent. The dispute arose from a mining-related agreement where Salfinger alleged breaches by Niugini Mining. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues before the court were whether the applicant had the right to claim costs from the respondent and, if so, to what extent. Specifically, the court had to assess the validity of three orders dated 30 March 2007, 29 August 2007, and 18 October 2007, and determine the amount of costs to be paid by the applicant to the respondent.

In its reasoning, the court found that the applicant was indeed entitled to claim the costs as per the orders in question. The court examined the terms of the orders and the agreement between the parties, confirming that the costs were properly incurred and allowable under the contract. Consequently, the court ordered the applicant to pay the respondent the specified amounts for the costs as per the orders of 30 March 2007, 29 August 2007, and 18 October 2007. The total amount due was determined to be $99,569.

Orders

Orders of the court

1. The applicant pay to the first respondent pursuant to the order of 30 March 2007 the sum of $16,774 for costs.

2. The applicant pay to first respondent pursuant to the order of 29 August 2007 the sum of $1,169 for costs

3. The applicant pay to the first respondent pursuant to the order of 18 October 2007 the sum of $81,626 for costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEEREY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

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