FEDERAL COURT OF AUSTRALIA

Highup Pty Ltd (in Liquidation) v Gubas (No 2) [2014] FCA 1355

THE COURT ORDERS THAT:

1.    The plaintiff pay the defendant’s costs as taxed if not agreed.

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

REASONS FOR JUDGMENT

1    On 5 November 2014, I dismissed the plaintiff’s application and reserved the question of costs (Highup Pty Ltd (in Liquidation) v Gubas [2014] FCA 1170).

2    Both parties have now made an application for costs. The plaintiff has sought the costs of proof of matters in a notice to admit facts and that otherwise there be no order as to the costs of the proceedings. The defendant has sought its costs of the proceedings.

3    The matters concerning which the plaintiff sought an admission (which was withheld) were identical to particulars of pleaded allegations which were not admitted by the defendant. As I observed in the earlier judgment, when matters were not admitted by the defendant the plaintiff bore an onus to establish them. In this particular instance the plaintiff did that. At the time that it sought the admission, the plaintiff served the evidence upon which it ultimately relied to establish the facts not admitted by the pleadings. I am not satisfied that any additional costs were incurred which the plaintiff would not otherwise have borne. I decline to order the plaintiff’s costs of proof of matters referred to in the notice to admit facts.

4    The defendant has appealed to the usual rule that costs follow the event and that as the plaintiff failed the defendant should have its costs. I agree.

5    I will order that the plaintiff pay the defendant’s costs as taxed if not otherwise agreed.

Associate:

Dated:    11 December 2014