FEDERAL COURT OF AUSTRALIA

Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3)

[2010] FCA 359

THE COURT ORDERS THAT:

1.                  The first to third respondents pay the applicants’ costs of and incidental to the application filed 1 December 2009 up to 14 December 2009.

2.                  The third respondent pay the applicants’ costs of and incidental to the application from and including 14 December 2009.

3.                  Such costs to be taxed.

4.                  Any such bill of costs is not to be taxed until the principal proceedings are concluded.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     As to the costs in respect of the anti-suit injunction, the application was originally cast in wider terms than those which, in the end, required determination.  That refinement only occurred on the day on which the application was listed for hearing.  It is submitted on behalf of the first to third respondents that there is a degree of novelty and importance about the issue.  Further, it would seem, there was an element of pre-emption or, perhaps, abundance of caution in the way in which the application was originally cast.  That latter aspect of the application seems to me, though, to be nothing more than a tactical decision made by the first to third respondents on the information then to hand.

2                     Tactical decisions of that nature, whilst they may be prudent as between lawyers acting for parties and the parties themselves, do not necessarily carry with them the consequence that the other side ought to have no benefit in the event that the result of that tactical decision is a loss or, for that matter, a studied withdrawal.  In other words, as it transpired, the narrowing of the application meant that the Sunland parties were put to costs that proved to be unnecessary costs.  I do not see that they ought to bear, in any way, the consequence of having been put to that unnecessary expense. 

3                     In saying that, I also do not believe, though, that there is any entitlement to other than an ordinary order for costs.  In other words, I do not detect anything frivolousness, vexatiousness, or the like, in the way in which the first to third respondents chose, initially, to cast their application.  It is only that events overtook the application in a way which made it prudent, after its filing, to narrow its terms.  Again, though, that prudence does not, to me, have the consequence that the Sunland parties having been put to unnecessary expense by that prudence ought not to have the benefit of a costs order. 

4                     I accept that there was a degree of novelty in the application in the sense that it intersected with the Emirate of Dubai.  However, in terms of general principle, these general principles were well settled and well settled by authorities at ultimate appellant level.  So I do not accept that there was novelty in terms of principle, only in terms of its application in a particular context. 

5                     That being the case, it seems to me that the ordinary order for costs ought to apply, and that the costs ought to follow the event, but follow the event in a way which reflects the refinement on the day of hearing of the application.  Thus, the first to third respondent should bear the costs of and incidental to the application up to 14 December 2009, and the third respondent should bear the costs alone from and including that date. 

6                     I note that, insofar as taxation is concerned, the effect of O 62 r 3(3) is that the costs of an interlocutory proceeding such as that arising from the application filed on 1 December 2009 shall not entitle a bill of costs to be taxed until the principal proceedings have been concluded.  No order was sought on behalf of the Sunland parties for that default position to be varied. 

Associate:

Dated:         19 April 2010