Territory Realty Pty Ltd v Garraway (No 3)

Territory Realty Pty Ltd, David John Booth, and John David Sanders filed an application against Alan Charles Garraway, Excess Pty Ltd, and Bishop Estate Pty Ltd, seeking orders to review the decisions of the taxing officer regarding the taxation of costs in their favour from the proceedings at first instance. The applicants raised two issues: whether the taxing officer had prejudged the taxation of costs and whether the correct prescriptive test should be applied to the taxation of costs. The applicants sought orders to disqualify the taxing officer from conducting the taxation of costs on the ground of apprehended bias and to apply the "fairly and reasonably incurred" test in the 2011 Rules. The respondents argued that the application was out of time and that neither r 3.04 nor r 3.11 of the Federal Court Rules 2011 (Cth) (2011 Rules) was available to support the present application. The Court found that the applicants had not demonstrated conduct on the part of the taxing officer that would give rise to apprehended bias. The Court also found that the 2011 Rules had no retrospective effect and that the correct prescriptive test should be applied based on the time the work was carried out. The Court declined to fix a lump sum for the applicants' costs and ordered that the applicants pay the respondents' costs of the application.