FEDERAL COURT OF AUSTRALIA
Commonwealth Bank of Australia v Peto (No 1)
[2006] FCA 474
COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) v PETO & ORS
NSD 731 OF 2003
ADVANCED SWITCHING SERVICES PTY LTD (ACN 077 773 589) v STATE BANK OF NEW SOUTH WALES LIMITED (T/A COLONIAL STATE BANK) (ACN 003 963 228)
NSD 88 OF 2001
RARES J
SYDNEY
22 MARCH 2006
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
NEW SOUTH WALES DISTRICT REGISTRY |
NSD 731 OF 2003 |
|
BETWEEN: |
COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) APPLICANT
|
|
AND: |
MICHAEL PAUL PETO FIRST RESPONDENT
JOAN CHRISTINA BULMAN SECOND RESPONDENT
BRYAN JOHN BULMAN THIRD RESPONDENT
MARIE SAKLAOUI FOURTH RESPONDENT
JOSEPHINE SAKLAOUI FIFTH RESPONDENT
PAUL SUKKAR SIXTH RESPONDENT
SCOTT HEYDE SEVENTH RESPONDENT |
|
RARES J |
|
|
DATE OF ORDER: |
22 MARCH 2006 |
|
WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
- The applicant pay the respondents’ costs of today and the costs thrown away by reason of the amendment.
- The costs thrown away by reason of the amendment (but not the costs of today) be payable forthwith, and taxed if agreement to their quantum is not reached.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
NEW SOUTH WALES DISTRICT REGISTRY |
NSD 88 OF 2001 |
|
BETWEEN: |
ADVANCED SWITCHING SERVICES PTY LTD (ACN 077 773 589) APPLICANT
|
|
AND: |
STATE BANK OF NEW SOUTH WALES LIMITED (T/A COLONIAL STATE BANK) (ACN 003 963 228) RESPONDENT
|
|
JUDGE: |
RARES J |
|
DATE OF ORDER: |
22 MARCH 2006 |
|
WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
- The cross-claimant pay the cross-defendant’s costs of today and the costs thrown away by reason of the amendment.
- The costs thrown away by reason of the amendment (but not the costs of today) be payable forthwith, and taxed if agreement to their quantum is not reached.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
NEW SOUTH WALES DISTRICT REGISTRY |
NSD 731 OF 2003 |
|
BETWEEN: |
COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) APPLICANT
|
|
AND: |
MICHAEL PAUL PETO FIRST RESPONDENT
JOAN CHRISTINA BULMAN SECOND RESPONDENT
BRYAN JOHN BULMAN THIRD RESPONDENT
MARIE SAKLAOUI FOURTH RESPONDENT
JOSEPHINE SAKLAOUI FIFTH RESPONDENT
PAUL SUKKAR SIXTH RESPONDENT
SCOTT HEYDE SEVENTH RESPONDENT |
|
|
NSD 88 OF 2001 |
|
BETWEEN: |
ADVANCED SWITCHING SERVICES PTY LTD (ACN 077 773 589) APPLICANT
|
|
AND: |
STATE BANK OF NEW SOUTH WALES LIMITED (T/A COLONIAL STATE BANK) (ACN 003 963 228) RESPONDENT
|
|
JUDGE: |
RARES J |
|
DATE: |
22 MARCH 2006 |
|
PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 The Commonwealth Bank of Australia (‘the Bank’) in both proceedings has applied to amend its pleadings. The amendment process commenced on about 28 October 2005 and has evolved over the last few months with the bank making a number of refinements to proposed amendments.
2 The respondents to this application, who are the first to sixth respondents in the proceedings brought by the bank (‘the Bank proceedings’), and Advanced Switching Systems Pty Ltd (‘ASS’) in the other proceedings (‘the ASS proceedings’), have been put to some more extra expense than would be usual in an amendment application by the variety of changes that the bank has made to its pleadings. I am of opinion that in the exercise of my discretion I ought to order that the bank in each proceeding pay to the other parties their costs of and thrown away by each amendment which it seeks to make. I am also of opinion that the bank should pay the costs of today of those parties in any event.
3 The respondents to the Bank’s application applied for an order that the costs, which I have suggested be awarded, be all assessable and payable forthwith. The Bank resists that application by submitting that this is not a case out of the ordinary and that it would be some form of admonishment to it to have such an order made.
4 In a usual amendment situation the ordinary course would be that an order would be made that would not be assessable forthwith. It seems to me that on the material before me and as a matter of common sense the respondents to the Bank’s application have had a degree of extra expense that they would not have had to incur in a usual amendment application.
5 I think that the fair way of compensating the unusual procedural history that this application has had is to order that the costs of and thrown away by the amendment be assessable forthwith.
|
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. |
Associate:
Dated: 9 May 2006
|
Counsel for the Applicant in Bank proceedings and Respondent in ASS proceedings: |
RG Forster SC with AA Henskens |
|
|
|
|
Solicitor for the Applicant in Bank proceedings and respondent in ASS proceedings: |
Commonwealth Bank of Australia |
|
|
|
|
Counsel for the First, Second and Third Respondents in Bank proceedings: |
G McGrath |
|
|
|
|
Solicitor for the First, Second and Third Respondents in Bank proceedings: |
Stojanovic Solicitors |
|
|
|
|
Counsel for the Fourth and Fifth Respondents in Bank proceedings: |
GF Grinter |
|
|
|
|
Solicitor for the Fourth and Fifth Respondents in Bank proceedings: |
Macquarie Lawyers |
|
|
|
|
Counsel for the Sixth Respondent in Bank proceedings and Applicant in ASS proceedings: |
E Glover |
|
|
|
|
Solicitor for the Sixth Respondent in Bank proceedings and Applicant in ASS proceedings: |
Sydun & Co |
|
|
|
|
Counsel for Ms Nader: |
M Dicker |
|
|
|
|
Solicitor for Ms Nader: |
Ebsworth & Ebsworth |
|
|
|
|
Date of Hearing: |
22 March 2006 |
|
|
|
|
Date of Judgment: |
22 March 2006 |
