Telstra Super Pty Ltd v Finch (No 2)

In Telstra Super Pty Ltd v Finch, the respondent sought to enforce a superannuation preservation order against the appellant. The dispute arose from the appellant's alleged failure to preserve a benefit owed under the Superannuation Guarantee (Administration) Act 1992. The matter was heard in the Federal Circuit Court of Australia, and on appeal to the Full Court of the Federal Court of Australia. The primary issue before the court was whether the appellant was entitled to the costs of a cross-appeal, which the Full Court found unnecessary to decide. The court had to consider the discretionary factors in determining whether the appellant was entitled to the costs of the cross-appeal.

The court examined the nature of the Calderbank offer made by the appellant prior to the trial, which included a release that went beyond the scope of the litigation. The respondent had refused this offer, and the court had to assess whether this refusal was reasonable in the circumstances. The court also had to consider the costs awarded in the trial division on a party/party basis and whether the parties' agreement that the appellant was entitled to the costs of appeal should include the costs of the cross-appeal. The court held that the respondent was not unreasonable in refusing the Calderbank offer, as it went beyond the scope of the litigation. The court also found that the appellant was entitled to the costs of the cross-appeal, as the costs of appeal should include the costs of the cross-appeal.

The Full Court of the Federal Court of Australia held that the appellant was entitled to the costs of the cross-appeal. The court exercised its discretion and found that the respondent was not unreasonable in refusing the Calderbank offer, as it went beyond the scope of the litigation. The court also held that the parties' agreement that the appellant was entitled to the costs of appeal should include the costs of the cross-appeal. The Full Court dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal on the party/party basis. The court also ordered that the appellant was entitled to the costs of the cross-appeal.