FEDERAL COURT OF AUSTRALIA

Tresize v National Australia Bank Limited (No 2) [2020] FCA 997

ORDERS

THE COURT ORDERS THAT:

1.    The first applicant pay the respondent’s costs of and incidental to the first applicant’s interlocutory application filed on 5 July 2018, as agreed or assessed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the respondent’s costs of and incidental to the proceeding (including the respondent’s interlocutory application dated 10 December 2018, the applicant’s interlocutory application provided to the Court on 14 December 2018 and the applicant’s interlocutory application dated 16 June 2020), as agreed or assessed.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

1    On 26 June 2020, I gave judgment on an interlocutory application in proceeding No. VG 200 of 1992 and on three interlocutory applications in proceeding No. VID1382 of 2018: Tresize v National Australia Bank Ltd [2020] FCA 902. In relation to costs, I ordered that, within 14 days, each party provide a written submission (of no more than three pages). These reasons, which deal with the issue of costs, should be read together with the judgment dated 26 June 2020. I will adopt the definitions used in the 26 June 2020 judgment.

2    As set out in the 26 June 2020 judgment at [11], I concluded that:

(a)    Mr Tresize’s interlocutory application dated 16 June 2020 (in the 2018 Proceeding) should be dismissed;

(b)    the 2018 Proceeding should be dismissed on the basis that each of the claims constituted an abuse of process or had no reasonable prospect of success, or both (as sought in the Bank’s interlocutory application dated 10 December 2018);

(c)    Mr Tresize’s interlocutory application provided to the Court in December 2018 (in the 2018 Proceeding) should be dismissed; and

(d)    Mr Tresize’s interlocutory application in the 1992 Proceeding should be dismissed.

3    Thus the Bank succeeded in respect of each interlocutory application.

4    The ordinary rule is that costs follow the event. There is no apparent reason why the ordinary rule should not apply in the circumstances of this case. The costs submissions filed by Mr Tresize do not provide any proper basis to depart from the ordinary rule. In particular, I do not consider Mr Tresize’s complaints regarding the Bank’s discovery to provide a proper basis to depart from the ordinary rule as to costs. The concerns that Mr Tresize raised regarding the Bank’s discovery were generally resolved as a matter of case management. They do not provide a basis to depart from the ordinary rule that the costs of the Bank’s summary dismissal application should follow the outcome of that application. Insofar as Mr Tresize refers in his submissions to delay in the hearing of the summary dismissal application, in my view the delay was largely due to Mr Tresize seeking and being granted more time to prepare his case. The Bank having been wholly successful in relation to the interlocutory applications, it is entitled to an order for costs.

5    In his written submission on costs, Mr Tresize notes that he intends to appeal from the 26 June 2020 judgment and, in these circumstances, seeks “a stay of costs, and an extension to make further costs submissions”. Insofar as Mr Tresize seeks an extension of time to make further written submissions on costs, I am not inclined to grant such an extension. The parties were given 14 days in which to file written submissions on costs. Mr Tresize provided a written submission on costs within the timeframe provided. Mr Tresize has not explained why more time is needed. Insofar as Mr Tresize seeks a stay of any order as to costs, I do not consider it appropriate to grant a stay at this stage. The question whether the costs orders should be stayed is better addressed after Mr Tresize files any application for leave to appeal (or notice of appeal).

6    Accordingly, I will make an order in the 1992 Proceeding that Mr Tresize pay the Bank’s costs of and incidental to Mr Tresize’s interlocutory application. In the 2018 Proceeding, I will make an order that Mr Tresize pay the Bank’s costs of and incidental to the proceeding (including the costs of the interlocutory applications).

Associate:

Dated:    15 July 2020

SCHEDULE OF PARTIES