Waverley Council v Refkin Pty Ltd

FEDERAL COURT OF AUSTRALIA

Waverley Council v Refkin Pty Limited [2001] FCA 1469

PRACTICE AND PROCEDURE – costs – whether applicant should be ordered to pay costs on indemnity basis – where applicant discontinued present proceeding – where discontinuance meant applicant already liable to pay costs on party and party basis – whether fact that applicant without explanation delayed serving on respondents application and statement of claim supports ordering indemnity costs – whether fact that applicant made allegation of fraud against respondents but in doing so did not make allegation which was irrelevant or which applicant knew to be false supports ordering indemnity costs – whether fact that applicant instituted three proceedings in three courts (including present proceeding) arising out of one set of facts supports ordering indemnity costs – where proceedings involved different parties, claims and relief – where applicant did not bring all proceedings to end by its own action – whether fact that courts in earlier proceedings ordered applicant to pay indemnity costs supports ordering indemnity costs in present proceeding – whether omission of respondents to give applicant timely notice that respondents intended to seek indemnity costs in present proceeding a factor against ordering indemnity costs – where applicant could reasonably have inferred that respondents did not intend to seek indemnity costs because respondents had consented to earlier orders for costs in present proceeding on party and party basis.

Trade Practices Act 1974 (Cth) ss 52(1), 75B(1)
Federal Court Rules O 22 rr 2(1)(b), 3(1), O 62 rr 12, 19, 26
Supreme Court Act 1970 (NSW) s 68

Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning (2000) 107 LGERA 363 referred to
Waverley Council v Refkin Pty Ltd [2000] NSWSC 242 referred to
Waverley Council v Refkin Pty Ltd [2000] NSWLEC 124 referred to
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 referred to
Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2001] FCA 1269 referred to

Matthew 26:52

WAVERLEY COUNCIL v REFKIN PTY LIMITED ACN 067 408 824 & ANOR

N 867 of 2000

KATZ J
19 OCTOBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 867 of 2000

BETWEEN:

WAVERLEY COUNCIL
APPLICANT

AND:

REFKIN PTY LIMITED
ACN 067 408 824
FIRST RESPONDENT

JOHN ROBERT KEITH
SECOND RESPONDENT

JUDGE:

KATZ J

DATE OF ORDER:

19 OCTOBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1The respondents’ motion be dismissed.

2The respondents pay the applicant’s costs of the motion.

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	N 867 of 2000

BETWEEN:

WAVERLEY COUNCIL
APPLICANT

AND:

REFKIN PTY LIMITED ACN 067 408 824
FIRST RESPONDENT

JOHN ROBERT KEITH
SECOND RESPONDENT

JUDGE:	KATZ J
DATE:	19 OCTOBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 11 August 2000, the Waverley Council (“the Council”), a local government body for a part of…