Smith, in the matter of Peko Rehabilitation Project Pty Ltd (Receiver and Manager Appointed) (in liq)

The matter before the court involves the liquidators of Peko Rehabilitation Project Pty Ltd (Receivers and Managers appointed) (in liquidation), who are the plaintiffs, and the Executors of the Estate of Jack Savage, who are opposing the liquidators' application. The liquidators had applied to the Court for approval to enter into agreements that included the grant of a sub-licence to North Mines Pty Ltd to operate a mine for five years. The Estate opposed the application, which was subsequently discontinued by the liquidators. The Estate now seeks its costs of opposing the application. The dispute revolves around the court's jurisdiction to order costs in favour of a non-party.

The legal issues before the court were whether the liquidators' application had taken on the character of a suit between parties and if so, whether the court had the jurisdiction to order costs in favour of a non-party. The court considered that the application had indeed taken on the character of a civil dispute inter partes, and the usual cost rules between parties applied. It was common ground that the court has a general discretion as to costs under s 43 of the Federal Court of Australia Act 1976 (Cth) and this discretion extends to ordering costs against or in favour of non-parties.

The court held that the liquidators' application had taken on the character of a civil dispute inter partes, and the usual cost rules between parties applied. The court also held that the cost rules between parties applied and the court has a general discretion as to costs under s 43 of the Federal Court of Australia Act 1976 (Cth). This discretion extends to ordering costs against or in favour of non-parties. The court ordered that the costs of the Estate of Jack Savage and of the liquidators in this application be costs in the winding up.