Siemens WLL v BIC Contracting LLC (costs)

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:

1. 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.

2. 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.

3. 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.

4. Siemens advances the following contentions in favour of the variation of…