FEDERAL COURT OF AUSTRALIA
Siemens WLL v BIC Contracting LLC (costs) [2024] FCA 201
File number: NSD 1152 of 2021 Judgment of: STEWART J Date of judgment: 6 March 2024 Catchwords: COSTS – application to vary costs order – consideration of procedural history – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 43 Cases cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Findex Group Ltd v McKay (No 3) [2020] FCA 259
Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; 90 ALJR 270
PKT Technologies Pty Ltd v Peter Vogel Instruments Pty Ltd (No 2) [2020] FCAFC 46
Siemens WLL v BIC Contracting LLC (garnishee order) [2023] FCA 1664
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Commercial Arbitration Number of paragraphs: 27 Date of last submission: 1 March 2024 Date of hearing: Determined on the papers. Counsel for the Applicants: E Ball Solicitor for the Applicants: Clayton Utz Counsel for the Respondent: The Respondent did not appear. Counsel for the garnishee, LMENA Pty Ltd: D Harris Solicitor for the garnishee, LMENA Pty Ltd: Allens ORDERS
NSD 1152 of 2021 BETWEEN: SIEMENS W.L.L.
First Applicant
SIEMENS AKTIENGESELLSCHAFT
Second Applicant
AND: BIC CONTRACTING LLC
Respondent
LMENA PTY LTD
Garnishee
ORDER MADE BY:
STEWART J
DATE OF ORDER:
6 MARCH 2024
THE COURT ORDERS THAT:
1.The applicants’ application to vary the costs order made on 22 December 2023 be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
STEWART J:
On 22 December 2023, I set aside a garnishee order issued in favour of the applicants (Siemens) against LMENA Pty Ltd: Siemens WLL v BIC Contracting LLC (garnishee order) [2023] FCA 1664 (J). The set-aside order was made in an interlocutory application brought by LMENA to set aside the garnishee order which had been issued pursuant to orders made in an ex parte application brought by Siemens. In setting aside the garnishee order, I ordered that Siemens pay LMENA’s costs on the basis that the costs follow the event, but I gave the parties leave to apply for a variation of the costs order because I had not heard submissions on costs.
Siemens now applies for a variation of the costs order. It submits that the appropriate order is that LMENA pay Siemens’s costs in respect of issues of UAE law, which it helpfully defines as those involving the preparation of the expert report, affidavits and exhibits relating to matters of UAE law, certified translations of documents and solicitor and counsel fees incidental to those matters.
Alternatively, Siemens submits that each party should bear its own costs or, as a further alternative, Siemens should only be required to pay LMENA’s costs from after LMENA served its reply submissions on 8 December 2023.
Siemens advances the following contentions in favour of the variation of…
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- Case
- [2024] FCA 201
- Decision Date
CaseChat Overview and Summary
The legal issue that the court had to determine was whether there were sufficient grounds to justify varying the costs order that had been made previously. The court considered the procedural history of the case, including the reasons for the original costs order and the arguments presented by both parties regarding the current application. The focus was on whether the application met the criteria for a variation of the costs order, as well as the broader principles of costs allocation in litigation.
In delivering its decision, the court emphasised the importance of procedural fairness and the principles that guide the allocation of costs in litigation. It found that the applicant had not provided adequate justification for varying the earlier costs order. The court was satisfied that the original costs order was appropriate and that there were no compelling reasons to alter it. Consequently, the application to vary the costs order was dismissed, with the court ordering the applicant to pay the respondent's costs of the application.
Orders
Orders of the court
1. The applicants’ application to vary the costs order made on 22 December 2023 be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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