FEDERAL COURT OF AUSTRALIA

Wileypark Pty Ltd v AMP Limited (No 2) [2018] FCAFC 167

ORDERS

IN EACH PROCEEDING, THE COURT ORDERS THAT:

1.    The costs of the parties to the proceeding, including costs of the application to transfer the proceeding to the Supreme Court of New South Wales, be costs in the cause.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    On 29 August 2018, the Court made orders transferring these proceedings to the Supreme Court of New South Wales. Certain declarations were also made: see Wileypark Pty Ltd v AMP Limited [2018] FCAFC 143.

2    No application for special leave to appeal was made. Therefore, upon the expiry of 28 days after 29 August 2018 (that is, 28 September 2018) the four matters were transferred to the Supreme Court.

3    There remains the question of costs. Brief submissions were filed by the parties pursuant to leave.

4    Other than AMP, all parties submitted that the costs of the motion be costs in the cause.

5    AMP submitted that the applicants in VID670/2018 (Fernbrook) and VID680/2018 (Komlotex) pay AMP’s costs of the transfer applications.

6    The appropriate order is, with respect, plainly that sought by the applicants. The issues concerning the operation of the relevant statutes were plainly such as to warrant caution in how these matters were to be disposed of. The applicants had at all times behaved responsibly and reasonably in how they approached both the Supreme Court proceeding and the proceedings in this Court. There is no basis to consider that they should be treated as losing parties because of the raising of the issues in question in matters regularly and reasonably brought in this Court.

7    In each matter, the order of the Court will be that the costs of the parties in the proceeding in this Court, including the costs of the application to transfer the proceeding, be costs in the cause.

Associate:

Dated:    5 October 2018