Tran v Kodari Securities Pty Ltd (No 2)

Tran v Kodari Securities Pty Ltd (No 2) involved a proceeding initiated by Mr Tran, who sought his costs thrown away arising from the abandoned cross-claim filed by Kodari Securities Pty Ltd. The primary issues in the case concerned whether the cross-claim was instituted unreasonably, whether the filing of affidavit evidence in support of the cross-claim constituted an unreasonable act, and whether the refusal to accept Mr Tran's offer of compromise was an unreasonable act causing him to incur costs. The matter was brought before the court after the Full Court had dismissed the appeal and cross-appeal, ordering no costs to be awarded.

The legal issues before the court required it to determine if the cross-claim was brought without reasonable cause, if filing affidavit evidence in support of the claim was an unreasonable act, and if the refusal to accept the offer of compromise was an unreasonable act. The court was tasked with interpreting sections 570(2)(a) and (b) of the Fair Work Act 2009 (Cth) to assess whether any of the actions taken by Kodari Securities warranted an exception to the general rule prohibiting the awarding of costs. Mr Tran argued that the cross-claim was largely doomed to fail, and that filing evidence in support of it was an unreasonable act. He also argued that the refusal to accept his offer of compromise was unreasonable.

In considering the application, the court found that Mr Tran had not demonstrated that the cross-claim was instituted without reasonable cause, as required under s 570(2)(a) of the Fair Work Act. The court also held that filing evidence in support of the cross-claim was not an unreasonable act under s 570(2)(b), as the evidence was filed in accordance with a court-ordered timetable. Lastly, the court found that the refusal to accept the offer of compromise did not constitute an unreasonable act under s 570(2)(b), as the terms of the offer were not sufficiently compelling to warrant a deviation from the presumptive operation of s 570 of the Fair Work Act.

1. The application for costs by the applicant be dismissed.
2. There be no order as to costs.