Practice and Procedure - motion seeking leave under Order 62 rule 3 of the Federal Court Rules to assess or tax costs of a discrete interlocutory proceeding forthwith and for payment forthwith of same - tests applicable - whether circumstances take case outside the ordinary rule
Practice and Procedure - motion seeking stay of proceedings pending payment of costs - whether premature
Federal Court Rules O 62 r 3
ANTHONY VASYLI v AOL INTERNATIONAL PTY LIMITED & ANOR
No. NG 219 of 1996
CORAM:Lehane J
PLACE:Sydney
DATE:2 September 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION ) No. NG 219 of 1996
BETWEEN:ANTHONY VASYLI
Applicant
AND:AOL INTERNATIONAL PTY LIMITED
First Respondent
PHILLIP VASYLI
Second Respondent
CORAM:Lehane J
PLACE:Sydney
DATE:2 September 1996
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The respondents have leave to assess or tax their costs ordered on 19 August 1996 forthwith.
Such costs include the respondents' costs as and from the date their solicitors made a formal request for particulars of the statement of claim, being 27 March 1996.
The said costs be paid forthwith after taxation or assessment.
The costs of todays' motion are reserved.
The parties are granted liberty to apply on three days' notice.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION ) No. NG 219 of 1996
BETWEEN:ANTHONY VASYLI
Applicant
AND:AOL INTERNATIONAL PTY LIMITED
First Respondent
PHILLIP VASYLI
Second Respondent
CORAM:Lehane J
PLACE:Sydney
DATE:2 September 1996
EXTEMPORE REASONS FOR JUDGMENT
LEHANE J: On 19 August 1996 I made orders on a motion of the respondents that the applicant's statement of claim be struck out and that the applicant pay the respondents' costs of the motion. I declined to exercise the jurisdiction to dismiss the proceedings summarily and I granted the applicant leave to file and serve within 28 days from 19 August 1996 an amended statement of claim. On the application of the respondent, made at the time I delivered judgment, I granted the parties liberty to apply on three days' notice.
The respondents now apply by motion in accordance with a notice of motion filed on 27 August 1996 for leave under Order 62 rule 3 of the Federal Court Rules to assess or tax their costs forthwith and for payment forthwith of those costs after taxation or assessment.
The respondents also seek an order staying the proceedings pending payment of the whole of those costs.
The power under Order 62 rule 3 to order taxation and payment forthwith, notwithstanding that the proceedings are not concluded, is one which has been rarely used. It is well established in this Court that the usual practice is to defer the taxation and payment of costs of interlocutory proceedings until the principal proceedings have been decided. That general rule is enshrined in subrule (1) of Order 62 rule 3.
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- Case
- [1996] FCA 804
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the circumstances warranted an immediate assessment and payment of costs under Order 62 rule 3 of the Federal Court Rules, which typically defers such costs until the conclusion of the proceedings. The respondents argued that the applicant's failure to amend the defective statement of claim warranted immediate costs. Conversely, the applicant argued that the motion was premature, given the pending opportunity to file an amended statement of claim.
Lehane J concluded that this case warranted an exception to the ordinary rule. The court found that the costs incurred up to the point of the formal request for particulars were effectively wasted, and any continuation of the proceedings would essentially be new. Thus, the court granted the respondents' application for immediate assessment and payment of costs, while reserving the decision on the stay pending further developments in the case. The costs of the motion itself were deferred pending the outcome of the applicant's potential amended statement of claim.
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