Westpac Banking Corporation v Wittenberg (No 3)

Westpac Banking Corporation filed an appeal against Wittenberg, challenging a decision of the Federal Court. The primary issue was the entitlement to indemnity costs in the lower court proceedings. The appellant did not raise the issue of indemnity costs during the appeal hearing or before the judgment was delivered. Instead, the appellant sought to argue the matter in an interlocutory application filed after the judgment and orders were entered.

The court needed to determine whether the appellant's application to seek indemnity costs was within the scope of the appeal. It also had to decide whether the appellant was entitled to indemnity costs in the primary proceedings after the appeal judgment was delivered and orders were entered. Additionally, the court had to consider whether the appellant should be granted a stay of orders and set off of costs after the judgment was delivered and orders were entered.

The court found that the appellant's application to seek indemnity costs was not within the scope of the appeal since it was not raised during the hearing or before judgment. Furthermore, the court held that the appellant was not entitled to indemnity costs in the primary proceedings after the appeal judgment was delivered and orders were entered. Consequently, the interlocutory application was dismissed with costs, as taxed if not agreed.