Winspear v Mackinnon

[2008] FCA 322

FEDERAL COURT OF AUSTRALIA

Winspear v Mackinnon [2008] FCA 322

COSTS – judicial discretion to award costs – whether costs should be awarded to the successful party on an indemnity basis – whether costs should be paid by first defendant only

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225, followed
Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 1844, followed
J Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, West Australia Branch (No 2) (1993) 46 IR 301, followed

ROSALIND WINSPEAR v NEIL GIBLIN MACKINNON, DEIDRE MACKINNON, ROCKLANDS PTY LTD (ACN 009 501 919) AND DALNESS PTY LTD (ACN 009 484 020)

TAD 40 OF 2005

MARSHALL J
11 MARCH 2008
HOBART

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 40 OF 2005

BETWEEN:

ROSALIND WINSPEAR
Plaintiff

AND:

NEIL GIBLIN MACKINNON
First Defendant

DEIDRE MACKINNON
Second Defendant

ROCKLANDS PTY LTD (ACN 009 501 919)
Third Defendant

DALNESS PTY LTD (ACN 009 484 020)
Fourth Defendant

JUDGE:	MARSHALL J
DATE OF ORDER:	11 MARCH 2008
WHERE MADE:	HOBART

THE COURT ORDERS THAT:

1.The first defendant pay the plaintiff’s costs of and related to the hearing on 28 November 2007, such costs being assessed on an indemnity basis.

2.The first defendant otherwise pay the plaintiff’s costs to be assessed on a party-party basis.

3.There is no order as to the costs of today’s hearing.

4.The plaintiff’s application is otherwise adjourned to a telephone directions hearing to be held at 9.30 am on 26 March 2008.

5.Liberty to apply with respect to the timing of the directions hearing in the preceding order.

6.The first defendant indemnify and if necessary reimburse the third and fourth named defendants of and in respect of all and any costs paid, disbursed, incurred or payable by them and incidental to the action as own solicitor client costs and expenses or otherwise.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 40 OF 2005

BETWEEN:

ROSALIND WINSPEAR
Plaintiff

AND:

NEIL GIBLIN MACKINNON
First Defendant

DEIDRE MACKINNON
Second Defendant

ROCKLANDS PTY LTD (ACN 009 501 919)
Third Defendant

DALNESS PTY LTD (ACN 009 484 020)
Fourth Defendant

JUDGE:	MARSHALL J
DATE:	11 MARCH 2008
PLACE:	HOBART

REASONS FOR JUDGMENT

1. On 24 December 2007, the Court published its judgment on the plaintiff’s application and the defendants’ cross claim in these proceedings. The Court did not make any substantive orders in that judgment. It required the parties to file and serve minutes of orders which they contended should be made to give effect to the reasons for judgment.

2. On 25 January 2008, the Court made orders directing the third and fourth defendants to correct their register of members in respect of certain shareholdings of the plaintiff. Those defendants were also required to lodge notices of correction of their registers of members with the Australian Securities and Investments Commission.

3. One of the…