FEDERAL COURT OF AUSTRALIA
Emirates Park Pty Ltd v Magic Millions Sales Pty Ltd [2002] FCA 1039
Costs – whether costs ought to be paid on an indemnity basis – whether respondent’s solicitors ought to have brought error to the attention of the applicant’s solicitors as a matter of professional courtesy
Statutes
Fair Trading Act (Qld) (1989)
Cases
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Cited
EMIRATES PARK PTY LTD V MAGIC MILLIONS SALES PTY LTD
Q43 of 2002
KIEFEL J
22 AUGUST 2002
BRISBANE
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
Q43 OF 2002 |
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BETWEEN: |
EMIRATES PARK PTY LTD APPLICANT
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AND: |
MAGIC MILLIONS SALES PTY LTD FIRST RESPONDENT
STEWART RAMSAY SECOND RESPONDENT
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JUDGE: |
KIEFEL J |
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DATE OF ORDER: |
22 AUGUST 2002 |
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WHERE MADE: |
BRISBANE |
THE COURT ORDERS THAT:
1. The applicant pay each of the first and second respondent’s costs thrown away by the amendment to its statement of claim.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
Q43 OF 2002 |
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BETWEEN: |
EMIRATES PARK PTY LTD APPLICANT
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AND: |
MAGIC MILLIONS SALES PTY LTD FIRST RESPONDENT
STEWART RAMSAY SECOND RESPONDENT
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JUDGE: |
KIEFEL J |
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DATE: |
22 AUGUST 2002 |
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PLACE: |
BRISBANE |
REASONS FOR JUDGMENT
(Costs)
1 In my reasons for judgment of 9 August 2002, on the application for leave to amend the statement of claim, I expressed the view that an order for the costs of that application in favour of either the applicant or the first respondent did not seem appropriate. Neither party seeks a different order with respect to the application and its hearing, and the applicant has conceded that it must pay the costs of both respondents thrown away by reason of the amendment. The first respondent however seeks an order that those costs be taxed and paid on an indemnity basis.
2 The first respondent points out that the applicant abandoned its reliance on the claim originally brought for breaches of the Fair Trading Act (Qld) (1989). It thereby accepted that the claim was futile. It is appropriate to consider indemnity costs “whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success”: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 401 [15].
3 The original statement of claim pleaded the wrong legislation. So much is conceded. It has not however been suggested that the first respondent’s legal advisors brought this to the attention of the applicant’s advisers, as professional courtesy and the interest of both parties requires. If they had done so, and the applicant nevertheless determined to pursue the claim the first respondent might have had some claim to indemnity costs. It does not suggest that this was done. I do not think the circumstances are such that an order for indemnity costs is appropriate.
4 The only order as to costs on the motion will be that the applicant pay both respondents’ costs thrown away by the amendments. I note that the second respondent seeks no further order with respect to the hearing, at which it took an observer’s role.
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I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice . |
Associate:
Dated: 22 August 2002
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Counsel for the Applicant: |
Mr P E Hack SC and Mr A Musgrave |
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Solicitor for the Applicant: |
Hopgood Ganim |
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Counsel for the First Respondent: |
Mr A Crowe SC and Mr A Barlow |
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Solicitor for the First Respondent: |
Hannigans |
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Counsel for the Second Respondent: |
Mr N Thompson |
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Solicitor for the Second Respondent: |
Freestone & Kumnick |
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Date of Hearing: |
7 August 2002 |
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Date of Judgment: |
22 August 2002 |
