Velissaris v Fitzgerald

The proceedings in Velissaris v Fitzgerald involved the respondents, NMFM Property Pty Ltd and the first respondent, who were the defendants in a proceeding for the removal of a caveat. The appellant, Mr Velissaris, was the plaintiff in that proceeding, seeking the removal of a caveat lodged by the respondents over certain property. The dispute reached the Federal Court of Australia, which was tasked with determining the appropriate costs order in the matter.

The court was required to decide whether the primary judge miscarried in his discretion when ordering that the appellant's costs be paid on the indemnity basis. The key legal issue was whether the exercise of the costs discretion was influenced by the fact that the respondents' lodgement of the caveat was calculated to provoke litigation. This issue was examined in light of the principles established in NMFM Property Pty Ltd (No 2) (2001) 109 FCR 77, which emphasised the importance of considering the proportionality of costs orders in relation to the conduct of the parties.

The court found that the primary judge did not miscarry in his discretion. The reasoning was that the respondents' actions in lodging the caveat were in direct contravention of earlier orders, and their conduct was a significant factor in the litigation. The court held that the primary judge had properly considered the principles of proportionality and the conduct of the parties, including the calculated provocation of litigation. Consequently, the indemnity costs order was appropriate given the circumstances of the case.

The court dismissed the appeal, upholding the primary judge's costs order. The final orders affirmed that the appellant's costs were to be paid on the indemnity basis by the respondents. This decision underscored the importance of the conduct of the parties in determining the appropriate costs orders in litigation.