Shrimp v Landmark Operations Limited (No 2) - [2008] FCA 25

FEDERAL COURT OF AUSTRALIA
Shrimp v Landmark Operations Limited (No 2) [2008] FCA 25
PROCEDURE – COSTS – where applicant’s application for separate trials refused – where ground on which application refused not raised until six months after hearing of application – where application would otherwise have succeeded – whether applicant ought to have its costs of application for separate trials – whether costs thrown away
Held: applicant to have its costs of application for separate trials – costs thrown away
PROCEDURE – COSTS – where cross-respondents sought leave to defend main action – where third cross-respondent successful in application for leave to defend – where one hearing conducted on basis of unarguable defence later abandoned – where other cross-respondent unsuccessful in application for leave to defend – where other cross-respondent withdrew application for leave to defend – appropriate order as to costs
Held: no order as to costs of hearing conducted on basis of unarguable defence later abandoned – costs otherwise reserved
Federal Court of Australia Act 1976 (Cth) s 43
Federal Court Rules O 5, r 12
Land and Environment Court Act 1979 (NSW) s 69(2)
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 referred to
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 referred to
NMFM Property Pty Ltd v Citibank Ltd (No 11) (2001) 109 FCR 77 referred to
Oshlack v Richmond River Council (1998) 193 CLR 72 referred to
Shrimp v Landmark Operations Limited [2007] FCA 1468 referred to
ROBIN JAMES SHRIMP AND JUDITH ANN SHRIMP v LANDMARK OPERATIONS LIMITED ACN 008 743 217, MICHAEL ERNEST GARGAN, SIMON & KATE GARGAN, SELECTED SEEDS PTY LTD, AUSTRALIAN PREMIUM SEEDS PTY LTD, SEED TESTING LABORATORY OF AUSTRALIA PTY LTD, STATE OF QUEENSLAND AND TOP END RURAL SUPPLIES PTY LTD
SAD 55 OF 2006
BESANKO J
24 JANUARY 2008
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 55 OF 2006

BETWEEN:

ROBIN JAMES SHRIMP AND JUDITH ANN SHRIMP
Applicants

AND:

LANDMARK OPERATIONS LIMITED ACN 008 743 217
Respondent/First Cross-Claimant

MICHAEL ERNEST GARGAN
First Cross-Respondent/Second Cross-Claimant

SIMON & KATE GARGAN
Second Cross-Respondents

SELECTED SEEDS PTY LTD
Third Cross-Respondent/Third Cross-Claimant

AUSTRALIAN PREMIUM SEEDS PTY LTD
Fourth Cross-Respondent

SEED TESTING LABORATORY OF AUSTRALIA PTY LTD
Fifth Cross-Respondent

STATE OF QUEENSLAND
Sixth Cross-Respondent

TOP END RURAL SUPPLIES PTY LTD
Seventh Cross-Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

24 JANUARY 2008

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1. On the applicants’ notice of motion dated 24 November 2006:
1.Landmark Operations Limited, Mr Michael Gargan, Selected Seeds Pty Ltd and Top End Rural Supplies Pty Ltd be jointly and severally liable to pay the applicants’ costs of and incidental to the notice of motion to be taxed in default of agreement.
2.Each of the parties liable under the above order be at liberty to apply for orders as to the appropriate contribution to the said costs as between them.

2.On Selected Seeds Pty Ltd’s notice of motion dated 29 March 2007 the costs of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 25
Decision Date: 24 January 2008

CaseChat Overview and Summary

Shrimp initiated legal proceedings against Landmark Operations Limited and associated parties, Selected Seeds Pty Ltd, Top End Rural Supplies Pty Ltd, and Mr Michael Gargan, following a dispute concerning a business transaction. The Federal Court of Australia was tasked with addressing Shrimp's claims against the defendants. The legal issues the court had to determine included the validity of the claims made by Shrimp, the defendants' liability, and the appropriate allocation of costs between the parties involved.

The court examined the evidence and submissions from both parties. It concluded that Shrimp's claims were unfounded and awarded costs against Shrimp and in favour of the defendants. The court ruled that Landmark Operations Limited, Mr Michael Gargan, Selected Seeds Pty Ltd, and Top End Rural Supplies Pty Ltd were jointly and severally liable for Shrimp's costs of the notice of motion. Furthermore, the court reserved the decision on the costs of the notices of motion filed by Selected Seeds Pty Ltd, Top End Rural Supplies Pty Ltd, and Mr Michael Ernest Gargan, with the exception of the costs associated with the hearing on 13 July 2007.

The final orders of the court were that Landmark Operations Limited, Mr Michael Gargan, Selected Seeds Pty Ltd, and Top End Rural Supplies Pty Ltd were to be jointly and severally liable for Shrimp's costs of the notice of motion, to be taxed in default of agreement. Each of these parties was granted the liberty to apply for orders regarding the appropriate contribution to the said costs between them. The costs of the notices of motion filed by Selected Seeds Pty Ltd, Top End Rural Supplies Pty Ltd, and Mr Michael Ernest Gargan were reserved, with the exception of the costs associated with the hearing on 13 July 2007.

Orders

Orders of the court

1. On the applicants’ notice of motion dated 24 November 2006:

1. Landmark Operations Limited, Mr Michael Gargan, Selected Seeds Pty Ltd and Top End Rural Supplies Pty Ltd be jointly and severally liable to pay the applicants’ costs of and incidental to the notice of motion to be taxed in default of agreement.

2. Each of the parties liable under the above order be at liberty to apply for orders as to the appropriate contribution to the said costs as between them.

2. On Selected Seeds Pty Ltd’s notice of motion dated 29 March 2007 the costs of the notice of motion be reserved save and except that there be no order as to the costs of the hearing on 13 July 2007.

3. On Top End Rural Supplies Pty Ltd’s notice of motion dated 3 April 2007 the costs of the notice of motion be reserved save and except that there be no order as to the costs of the hearing on 13 July 2007.

4. On Mr Michael Ernest Gargan’s notice of motion dated 23 May 2007 the costs of the notice of motion be reserved save and except that there be no order as to the costs of the hearing on 13 July 2007.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BESANKO J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 55 OF 2006

JUDGE:	BESANKO J
DATE OF ORDER:	24 JANUARY 2008
WHERE MADE:	ADELAIDE