FEDERAL COURT OF AUSTRALIA
Smits v Loel (No 2) [2015] FCA 29
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | First Respondent PIONEER INVESTMENTS (AUST) PTY LTD Second Respondent LILLAS & LOEL LAWYERS Third Respondent |
DATE OF ORDER: | 30 January 2015 |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The applicant pay the first, second and third respondents’ costs of the proceeding on an indemnity basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 725 of 2013 |
BETWEEN: | LEONARDUS GERARDUS SMITS Applicant
|
AND: | JAMES BERESFORD LOEL First Respondent PIONEER INVESTMENTS (AUST) PTY LTD Second Respondent LILLAS & LOEL LAWYERS Third Respondent
|
JUDGE: | RANGIAH J |
DATE: | 30 january 2015 |
PLACE: | BRISBANE |
REASONS FOR JUDGMENT
1 On 10 December 2014, I gave summary judgment in favour of the first, second and third respondents. The basis was that the proceeding was both a direct and collateral attack in this Court upon the processes and orders of the Supreme Court of Queensland. The proceeding had no reasonable prospects of success and was an abuse of process. I also made an order, which the applicant did not oppose, dismissing the proceeding against the fourth respondent, John M O’Connor & Company.
2 In their application for summary judgment the first, second and third respondents sought an order that the applicant pay their costs on an indemnity basis, but did not address that issue in their oral or written submissions. Consequently, I gave the parties leave to file written submissions concerning costs. The first, second and third respondents have filed written submissions, but the applicant has not.
3 Indemnity costs may be ordered under r 40.02 of the Federal Court Rules 2011 (Cth). They are awarded to compensate a party fully for costs which the usual party-party order does not cover when there are special or unusual circumstances: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234, per Sheppard J.
4 The principal proceeding challenging the processes and orders of the Supreme Court was brought in disregard of clearly established legal principles. It lacked any reasonable prospect of success and was an abuse of process. In addition, the applicant unreasonably failed to accept an offer made by the first, second and third respondents that the applicant discontinue the proceeding with no order as to costs. These circumstances warrant an order that the applicant pay the first, second and third respondents’ costs of the proceeding on an indemnity basis.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. |
Associate:
Dated: 30 January 2015
