Ting v Superstop Auto Parts Pty Ltd - [2020] FCCA 963

FEDERAL CIRCUIT COURT OF AUSTRALIA

TING v SUPERSTOP AUTO PARTS PTY LTD & ORS

[2020] FCCA 963

Catchwords:
INDUSTRIAL LAW – COSTS – Fair Work – application in a case seeking costs – where the substantive proceedings have been discontinued – where costs had been ordered but not quantified in respect of a previous interlocutory application – whether indemnity costs be ordered – whether costs be ordered against the applicant’s former solicitor – costs awarded against the applicant in accordance with the scale – costs not ordered against former solicitor.

Legislation:

Fair Work Act 2009 (Cth), ss.570
Family Law Act 1975
Federal Circuit Court Rules 2001, Sch.1
Federal Court Rules 2011

Cases cited:

Kappel v Carlsson (No 2) [2018] FCCA 2973

Rangi v Kmart Australia Ltd(No 2) [2019] FCA 2083

Ryan v Primesafe [2015] FCA 8

Applicant:

KRIS LYNN TING

First Respondent:

SUPERSTOP AUTO PARTS PTY LTD

Second Respondent:

STEVEN PAUL KRETI

Third Respondent:

VICTOR MAKRIEVSKI

Fourth Respondent:

VIVIENNE LEE MAKRIEVSKI

File Number:

MLG 1611 of 2019

Judgment of:

Judge Blake

Hearing date:

13 February 2020

Date of Last Submission:

13 February 2020

Delivered at:

Melbourne

Delivered on:

28 April 2020

REPRESENTATION

Counsel for the Applicant:

No appearance

Solicitors for the Applicant:

None

Counsel for the Respondents:

Mr Heath

Solicitors for the Respondents:

Carter Newell Lawyers

ORDERS

The Applicant pay the Respondents’ costs of and incidental to the strikeout application heard on 12 December 2019 fixed in the sum of $7,646 within 60 days of the date of this Order.
The Applicant pay the Respondents’ costs of the present application, fixed in the amount of $3,304.50 within 60 days of the date of this Order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1611 of 2019

KRIS LYNN TING

Applicant

And

SUPERSTOP AUTO PARTS PTY LTD

First Respondent

STEVEN PAUL KRETI

Second Respondent

VICTOR MAKRIEVSKI

Third Respondent

VIVIENNE LEE MAKRIEVSKI

Fourth Respondent

REASONS FOR JUDGMENT

Introduction

Before me is an Application in a Case filed by the Respondents on 3 February 2020, in which the Respondents seek:
a)that their costs, in respect of a costs order made in their favour on 12 December 2019, be fixed in the sum of $9,513 payable by the Applicant;
b)that, in light of the Applicant discontinuing the substantive proceedings, the Applicant pay the Respondents’ costs of and incidental to the proceeding on an indemnity basis fixed in the sum of $40,000;
c)their costs in connection with the Application in a Case for costs presently before the Court; and
d)that, to the extent the Court considers it appropriate to make one or more of the orders above, the Court give consideration to making a costs order not only against the Applicant, but also against her former solicitor.
For the reasons that follow I have decided that:
a)the Applicant should pay the Respondents’ costs of and incidental to the strikeout application heard on 12 December 2019 fixed in the sum of $7,646;
b)the Respondents ought not be awarded costs of and incidental to the substantive…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ting v Superstop Auto Parts Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCCA 963
Decision Date: 28 April 2020

CaseChat Overview and Summary

In *Ting v Superstop Auto Parts Pty Ltd*, heard before Judge Blake in the Federal Circuit and Family Court of Australia, the applicant sought costs following the discontinuance of substantive proceedings. Costs had previously been ordered but not quantified in relation to an interlocutory application. The respondent sought to recover its costs of the discontinued proceedings.

The primary legal issues before the Court were whether indemnity costs should be ordered against the applicant, and whether costs should be ordered against the applicant's former solicitor. The Court was required to determine the appropriate basis for awarding costs in circumstances where the substantive claim had been withdrawn after an earlier interlocutory order for costs had been made but not yet assessed.

Judge Blake determined that the general rule for costs should apply, meaning costs would be awarded on the standard scale. The Court found no exceptional circumstances to warrant ordering indemnity costs against the applicant. Furthermore, the Court declined to order costs against the applicant's former solicitor, as there was no evidence to suggest the solicitor had acted improperly or vexatiously in a manner that would justify such an order. The applicant was ordered to pay the respondent's costs in accordance with the standard scale.

Orders