Sheahan v Ren (No 2)

[2017] FCA 1188

FEDERAL COURT OF AUSTRALIA

Sheahan v Ren (No 2) [2017] FCA 1188

File number:	SAD 302 of 2016
Judge:	BESANKO J
Date of judgment:	6 October 2017
Catchwords:	PRACTICE AND PROCEDURE – consideration of an application for indemnity costs – where the applicants sought to rely on an offer of compromise under Part 25 of the Federal Court Rules 2011 (Cth) – where the offer of compromise was compliant with the Rules – where service of the offer of compromise was proved.
Legislation:	Federal Court Rules 2011 (Cth) r 25.14
Cases cited:	Sheahan v Ren [2017] FCA 1163
Date of hearing:	29 September 2017
Registry:	South Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	2
Counsel for the Applicants:	Mr J Cudmore
Solicitor for the Applicants:	Cosoff Cudmore Knox
Counsel for the Respondent:	The Respondent did not appear

ORDERS

SAD 302 of 2016

BETWEEN:

JOHN SHEAHAN AND IAN RUSSELL LOCK AS JOINT AND SEVERAL LIQUIDATORS OF TERRITORY HEAVY INDUSTRIES LIMITED (IN LIQUIDATION) ACN 149 466 142

First Applicant

JOHN SHEAHAN AND IAN RUSSELL LOCK AS JOINT AND SEVERAL LIQUIDATORS OF CASCADE INFRASTRUCTURE PTY LIMITED (IN LIQUIDATION) ACN 147 019 654

Second Applicant

AND:

JERRY REN

Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	6 OCTOBER 2017

THE COURT ORDERS THAT:

1.The respondent is to pay the costs of the first applicant and the second applicant of and incidental to these proceedings for the period up to and including 12 December 2016 on a party and party basis, and for the period on and from 13 December 2016 on an indemnity basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

1. I delivered judgment in this proceeding on 29 September 2017 (Sheahan v Ren [2017] FCA 1163). At that time, I made the following orders:

   1.Judgment for the first applicant against the respondent in the sum of $46,278.40.

   2.Judgment for the second applicant against the respondent in the sum of $274,753.56.

2. The applicants applied for an order for costs to be assessed on an indemnity basis. I rejected the application insofar as it was based on the submission that it ought to be made because the respondent never had a defence to the proceeding. The applicants then sought to rely on an offer of compromise under Part 25 of the Federal Court Rules 2011 (Cth) (the Rules) and dated 2 December 2016. The offer complies with the Rules and, in particular, r 25.14(3). However, the applicants were not able to prove service of the offer at the hearing on 29 September 2017. I adjourned this aspect of the matter in order to give them the opportunity to do so. They have now proved service of the offer by the evidence contained in the affidavit of Mr Hamish John Gillis sworn on 29 September 2017. In the circumstances, I am satisfied that it is appropriate for me to make the following order in addition to the orders I made on 29 September 2017:

   (1)The respondent is to pay the costs of the first applicant and the second applicant of and incidental to these proceedings for the period up to and including 12 December 2016 on a party and party basis, and for the period on and from 13 December 2016 on an indemnity basis.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:        

Dated:        6 October 2017