FEDERAL COURT OF AUSTRALIA

Abel Point Marina (Whitsundays) Pty Limited (now known as ACN 060 559 971 Pty Ltd) v Sea-Slip Marinas (Aust) Pty Limited [2009] FCA 782

ABEL POINT MARINA (WHITSUNDAYS) PTY LIMITED (NOW KNOWN AS ACN 060 559 971 PTY LTD) v SEA-SLIP MARINAS (AUST) PTY LIMITED (IN LIQUIDATION) ACN 103 644 640, LYN DULCIE BRIGHTON and MICHAEL KEEVERS

NSD 2260 of 2006

MOORE J

23 JULY 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The applicant pay the second respondent her costs of and incidental to its notice of motion of 11 March 2008 including the hearings of 10 April and 24 June 2008 and such additional costs as have been occasioned to date by the second respondent in defending the claim in paragraph 36 of the further amended statement of claim filed 27 March 2007.

2.         The costs be payable on an indemnity basis.

3.         The cost be payable forthwith.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          On 12 November 2008 I refused the applicant leave to further amend its statement of claim.  I also dismissed the proceedings against the third respondent and ordered the applicant to pay the third respondent's costs on an indemnity basis.  A residual issue I did not deal with at the time, was what orders should be made in relation to the second respondent's costs.  The second respondent participated in the hearing of the notice of motion which led to the orders of 12 November 2008.  She now seeks her costs of the notice of motion and related matters, the costs be paid on an indemnity basis and be payable forthwith.  The applicant resists these orders.  The applicant and the second respondent filed written submissions concerning costs in June 2009.

2                          The applicant's unsuccessful application to amend the statement of claim was of direct interest to the second respondent.  The case that was sought to be raised was against not only the third respondent but the second respondent as well.  Indeed the nature of the liability proposed to be visited upon the second respondent was, conceptually, the same as the liability proposed to be visited upon the third respondent.  In those circumstances, the second respondent was entitled to resist the amendment.  It is true that her solicitor played a subsidiary role at the hearing because, in the main, the carriage of the argument was with counsel for the third respondent.  However specific additional submissions were made on behalf of the second respondent which, as it transpired, it was unnecessary for me to deal with in the judgment of 12 November 2008.

3                          While I did not do so expressly, it is plain from my reasons for judgment that what is being described in the proceedings as the SSM representation claim (as presently pleaded) is doomed to fail against the second respondent.  If necessary, a formal order can be made striking out that aspect of the pleadings as they are presently formulated. 

4                          In the reasons of 12 November 2008 I indicated that the applicant has pursued a claim (as an element of its overall case) that manifested fundamental difficulties from the outset.  That resulted in an order for indemnity costs in favour of the third respondent.  There is no reason, in my opinion, why a similar order ought not be made in favour of the second respondent.  Indeed, as the second respondent submits, a costs order should be made in her favour in relation to the applicant's unsuccessful application to amend the statement of claim and its pursuit of the SSM representation claim.  Those costs should be on an indemnity basis essentially for the reasons I gave in my judgment of 12 November 2008. 

5                          While very often an order for costs in an interlocutory application merges, in practical effect, with the costs of the proceedings, this case is one where, in my opinion, costs ought be ordered to be payable forthwith: see McKellar v Container Terminal Management Services Limited [1999] FCA 1639 at [13] and following, and more recent cases collected in Rafferty v Time 2000 West Pty Limited (No 3) [2009] FCA 727.  That will enable both the applicant and the second respondent to, in effect, draw a line under the proceedings as they have been framed to date and for the applicant to determine what, if any, claims it wishes to pursue against the second respondent.

Associate:

Dated:         23 July 2009