Zhang v Kanellos (No 2)

[2005] FMCA 418

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

1. 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.

2. 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)

1. 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

2. 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.

3. 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.

4. 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