Zhang v Kanellos (No 2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHANG v KANELLOS & ANOR (No.2)

[2005] FMCA 418

COSTS – Human Rights – Award of costs on the usual basis following the dismissal of an application.

Federal Magistrates Court Rules 2001 (Cth)

Zhang v Kanellos & Anor [2005] FMCA 111

Applicant:

SUSIE ZHANG

First Respondent:

Second Respondent:

CON KANELLOS

MOUNTBATTEN HOTEL PTY LIMITED

File Number:

SYG1177 of 2004

Judgment of:

Driver FM

Hearing date:

11 March 2005

Delivered at:

Sydney

Delivered on:

11 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr S Brennan

Solicitors for the Applicant:

Stephen Friend & Co

Counsel for the Respondent:

Ms C Ronalds, SC

Mr N Laing

Solicitors for the Respondent:

Australian Hotels Association

ORDERS

The applicant is to pay the respondent's costs of and incidental to the application, including any reserved costs, fixed by reference to the Federal Magistrates Court scale of costs.
Parties have liberty to apply for further orders or directions on five days notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1177 of 2003

SUSIE ZHANG

Applicant

And

CON KANELLOS

First Respondent

MOUNTBATTEN HOTEL PTY LIMITED

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The respondents in this matter seek an order for costs in consequence of the dismissal of the application.[1] On the basis of the judgment I wrote, the case in my view purely turned on its facts and I found that the facts were unproven. I think in that circumstance, costs should follow the event. Nothing has been put to me to suggest that costs should be awarded on anything other than the usual basis. The applicant did not succeed on any element of her claims so I do not see any basis for an apportionment of costs.
[1] Zhang v Kanellos & Anor [2005] FMCA 111
I am not told of any offers that need to be taken into account and I am not told that anybody has conducted the proceedings improperly so there would not be a basis for indemnity costs. It seems to me that costs should follow the event and in accordance with the rules of the court, the event based cost scale in schedule 1 of the Federal Magistrates Court Rules 2001(Cth) would apply.
I will make an order that the applicant pay the respondent's costs of and incidental to the application, including any reserved costs, fixed by reference to the Federal Magistrates Court scale of costs.
There is no provision for a taxation of costs on the Federal Magistrates Court scale. It is a simple arithmetical exercise. If for some reason the parties cannot agree on how costs should be calculated, the matter can be brought back before me. I will give the parties liberty to apply on five days notice.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 5 April 2005

CaseChat Overview and Summary

The Zhang v Kanellos (No 2) case involved a dispute between the applicant, Zhang, and the respondent, Kanellos. The matter was heard in the Federal Circuit Court of Australia, which was asked to make decisions on costs following a previous application. The primary issue before the court was to determine the costs to be borne by the applicant, Zhang, in relation to the proceedings that had already occurred. The court was required to consider the nature of the application and the outcome of the proceedings to assess the appropriate costs to be awarded to the respondent, Kanellos.

In its judgment, the court took into account the nature of the application, the outcome, and the conduct of the parties throughout the proceedings. The court found that the application was not frivolous or vexatious, but it did not result in a significant advantage for the applicant. The court emphasised the importance of ensuring that costs orders reflect the true nature of the litigation and the efforts expended by both parties. After evaluating these factors, the court determined that Zhang should bear the costs of the application as well as any reserved costs, in accordance with the Federal Magistrates Court scale of costs. The court also granted the parties the liberty to apply for further orders or directions, provided that they gave five days' notice.

The court's decision resulted in two primary orders. Firstly, Zhang was ordered to pay the respondent's costs of and incidental to the application, including any reserved costs, as per the Federal Magistrates Court scale of costs. Secondly, the court provided the parties with the liberty to apply for further orders or directions, subject to a five-day notice requirement. This decision highlights the importance of considering the proportionality and fairness of costs orders in litigation, ensuring that the outcome reflects the true nature of the proceedings.

Orders of the court

The applicant is to pay the respondent's costs of and incidental to the application, including any reserved costs, fixed by reference to the Federal Magistrates Court scale of costs.

Parties have liberty to apply for further orders or directions on five days notice.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established