Wu v Avin Operations Pty Ltd - [2007] FCA 882

FEDERAL COURT OF AUSTRALIA
WU V AVIN OPERATIONS PTY LTD
[2007] FCA 882
JUN XUE WU V AVIN OPERATIONS PTY LTD &ORS
VID 187 OF 2006
RYAN J
14 JUNE 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID187 OF 2006

BETWEEN:

JUN XUE WU
Applicant

AND:

AVIN OPERATIONS PTY LTD (ACN 076 956 913)
BARRIE ARMITAGE
CHRISTOPHER JAMES ARMITAGE
JOAN DOROTHY ARMITAGE
ASIA PACIFIC COATING PTY LTD (ACN 089 840 728)
Respondents

JUDGE:

RYAN J

DATE OF ORDER:

14 JUNE 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.Unless the costs of the applicant, Jun Xue Wu, of and incidental to the hearing of 18 May 2006, have been comprehended by the consent order made on 26 February 2007 in proceedings numbered (P) VID 372 of 2003, the said costs, in default of agreement be taxed before the conclusion of the principal proceeding and paid by the second respondent, Barrie Murdoch Armitage, forthwith upon taxation or agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID187 OF 2006

BETWEEN:

JUN XUE WU
Applicant

AND:

AVIN OPERATIONS PTY LTD (ACN 076 956 913)
BARRIE ARMITAGE
CHRISTOPHER JAMES ARMITAGE
JOAN DOROTHY ARMITAGE
ASIA PACIFIC COATING PTY LTD (ACN 089 840 728)
Respondents

JUDGE:

RYAN J

DATE:

14 JUNE 20077

PLACE:

MELBOURNE

REASONS FOR JUDGMENT ON COSTS

There was before the Court an application for an extension of time in which to seek to appeal from certain orders made by Kenny J on 3 February 2006, in proceeding numbered VID 327 of 2003 involving the same parties before this Court. Her Honour’s orders were in these terms:
“1. The applicant prepare a bill of costs in respect of the motion, notice of which was filed on 4 August 2004, and such bill of costs be taxed by Registrar Bardsley at 10.15am on 13 February 2006.
2.The first and second respondents pay forthwith the applicant’s costs of and incidental to the motion, notice of which was filed on 4 August 2004, on an indemnity basis, to be taxed pursuant to paragraph 1 hereof.
3.If the first and second respondents do not pay the applicant’s taxed costs within 14 days from the date of service upon them of a certificate of taxation, then the applicant have leave to enter judgment against the first and second respondents for $334,000 and interest thereon.
4.The motion, notice of which was filed on 4 August 2004, be otherwise dismissed.”
The motion on notice dated 4 August 2004 referred to in paras 1 and 2 of those orders was by the present respondent, Ms Wu, the applicant in the substantive proceedings for leave to enter judgment against the first respondent Avin Operations Pty Ltd (“Avin”) and the second respondent, Barrie Armitage, who brought the application for an extension of time within which to seek leave to appeal.
It is accepted by Mr Armitage that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wu v Avin Operations Pty Ltd

Details

AGLC: Wu v Avin Operations Pty Ltd [2007] FCA 882
Case: [2007] FCA 882
Decision Date: 14 June 2007

CaseChat Overview and Summary

In the matter of Wu v Avin Operations Pty Ltd, the Federal Court of Australia dealt with a dispute involving Jun Xue Wu, the applicant, and Avin Operations Pty Ltd, the first respondent, along with Barrie Murdoch Armitage, the second respondent. The applicant sought recovery of costs incurred during the proceedings. The case was centred on whether the costs, specifically those from a hearing on 18 May 2006, were adequately covered by a prior consent order dated 26 February 2007. The applicant argued that if these costs were not included in the earlier order, they should be taxed and paid by the second respondent.

The primary legal issue before the court was to determine whether the earlier consent order comprehensively included the costs from the specified hearing, and if not, whether these costs should be taxed and paid by the second respondent. The court had to interpret the terms of the consent order and assess its completeness concerning the costs in question.

In its reasoning, the court noted that if the costs were not comprehended by the earlier consent order, they should be addressed separately. The court found that the applicant's argument was valid, and if the costs were not covered by the prior order, they should be taxed and paid by the second respondent. The court ordered that unless the costs were included in the earlier order, they should be taxed before the conclusion of the principal proceeding and paid forthwith upon taxation or agreement.

Orders

Orders of the court

1. Unless the costs of the applicant, Jun Xue Wu, of and incidental to the hearing of 18 May 2006, have been comprehended by the consent order made on 26 February 2007 in proceedings numbered (P) VID 372 of 2003, the said costs, in default of agreement be taxed before the conclusion of the principal proceeding and paid by the second respondent, Barrie Murdoch Armitage, forthwith upon taxation or agreement.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

RYAN J

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Ratio Decidendi

Legal Principle Established

Established by: RYAN J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID187 OF 2006

BETWEEN:	JUN XUE WU Applicant
AND:	AVIN OPERATIONS PTY LTD (ACN 076 956 913) BARRIE ARMITAGE CHRISTOPHER JAMES ARMITAGE JOAN DOROTHY ARMITAGE ASIA PACIFIC COATING PTY LTD (ACN 089 840 728) Respondents

JUDGE:	RYAN J
DATE OF ORDER:	14 JUNE 2007
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID187 OF 2006

JUDGE:	RYAN J
DATE:	14 JUNE 20077
PLACE:	MELBOURNE