FEDERAL COURT OF AUSTRALIA

Nyoni v Chee Koon Hee (No 3) [2013] FCA 726

THE COURT ORDERS THAT:

1.    The applicant pay the costs of the:

(a)    first, second and seventh respondents;

(b)    third, fourth and fifth respondents;

(c)    sixth respondent;

(d)    eighth respondent;

(e)    ninth, tenth and twelfth respondents, and

(f)    eleventh respondent

in relation to the interlocutory application dated 28 June 2013 to amend the originating application.

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

REASONS FOR JUDGMENT

1        I made orders on 2 July 2013 in relation to the applicant’s interlocutory application dated 28 June 2013 to amend the originating application. The application was dismissed. Written reasons for judgment were published on 22 July 2013. The question of costs had been reserved to be dealt with in supplementary written reasons. These are those reasons.

2        The first, second, seventh, ninth, tenth and twelfth respondents sought indemnity costs payable forthwith. The third, fourth and fifth respondents sought costs. The sixth respondent sought costs to be fixed and payable forthwith. The eighth and eleventh respondents sought costs payable forthwith.

3        I have set out the principles concerning indemnity costs and payment of costs forthwith in Nyoni v Chee Koon Hee [2013] FCA 701.

4        On the last occasion this matter was before me I invited Mr Nyoni to attempt to retain solicitors to advise him in relation to this present application. Mr Nyoni informed the Court that he had had difficulty retaining solicitors. I will accept this to be a fact. In those circumstances, I am not prepared to order indemnity costs.

5        It would, I think, be harsh to impose indemnity costs, even where, had he been able to obtain legal advice, it is likely that the application, at least in the terms and basis upon which it was brought, would not have been advanced He was unable to source such advice.

6        Nor do I think there is a basis for making an order that costs be paid forthwith. Otherwise this would become the norm in relation to any interlocutory application made in the course of a proceeding. I have no relevant evidence before me to enable me to fix costs.

Associate:

Dated:    24 July 2013