Canberra Residential Developments Pty Limited v Brendas

REASONS FOR JUDGMENT 1 The applicant moves on a notice of motion seeking an order that the taxation of the first, second and third respondents' costs of a hearing that took place before Graham J be stayed. His Honour had delivered judgment on 30 January 2009 (Canberra Residential Developments Pty Limited v Brendas (No 5) [2009] FCA 34). The stay is sought pending the final orders of the Full Court in the hearing of the appeal from Graham J's judgment. That hearing took place last week and judgment has been reserved. (The present motion does not concern the fourth respondent who has not filed a bill of costs and in these reasons, a reference to the respondents should be read as referring to the first, second and third respondents only.) 2 This is not the first time that the applicant has sought a stay of the taxation of costs in this matter. An application was made to Stone J in February of this year for such an order, together with certain other orders (Canberra Residential Developments Pty Limited v Brendas [2010] FCA 90). On that occasion, her Honour noted that an interim certificate of taxation had already issued in respect of some part of the costs and I will deal with what happened to that shortly. 3 Before Stone J, the applicant sought an order that taxation of the respondents' costs be stayed pending the resolution of the appeal. On that occasion, it was put to her Honour that the hearing of the appeal was imminent and that, inter alia, the applicant would be in difficulties in preparing for the appeal and at the same time dealing with the taxation (at [13]). Her Honour was not satisfied that continuing with the taxation would be a significant additional disruption to the applicant's preparation of its appeal (at [14]). It should be noted immediately that her Honour observed that there was no issue, nor is there any current issue, as to ability of the respondents to pay costs if the costs of the first instance proceedings were reversed, even if they were also ordered to bear the costs of the appeal (at [14]). 4 In the course of her Honour's reasons, Stone J dealt with the question of the imminence of the appeal. Her Honour noted at [15] that the hearing of the appeal would not be before May and this prediction has come about. Her Honour noted that, from the complexity of the matter, it was reasonable to assume that the judgment of the Full Court may be reserved for some time. 5 Her Honour then said that in the circumstances, and where costs orders had been made in January 2009 and the resolution of the appeal was not imminent, it seemed to her Honour that the respondents should not be kept out of the benefit of the costs order made in their favour until the appeal is finally resolved. 6 As to the history of the taxation proceedings, the respondents filed a bill of costs and the Registrar made an estimate of those costs pursuant to O 62 r 46(3)(a) of the Federal Court Rules. The applicant then filed a notice of objection. Initially, no objection was taken to some part of that estimate and an interim certificate of taxation was issued. Without going into the details, that certificate of taxation is no longer relevant and an objection has been taken to the totality of the bill of costs. The applicant has filed an amended notice of objection, taking specific objections to slightly less than half of the total bill and general objections that, it is accepted, would require every item to be substantiated. 7 Two days were already allotted to that taxation prior to the hearing of the appeal, being 15 and 29 March, and a further two days, being 12 and 13 April 2010. A further 11 days have already been allocated by the Deputy Registrar for the further hearing of the objections. On 17 May the applicant sought a stay of the taxation from the Deputy Registrar. That application was refused. 8 A further complication is that the appeal to the Full Court did not include any appeal against orders in respect of the second respondent, Ms Brendas. Ms Brendas is represented by the same solicitors who appear for the first and third respondents and there is an issue before the Deputy Registrar as to the allocation of costs in her favour. In any event, it is accepted by the applicant that there is no reason why Ms Brendas should be subject to any further delay in the receipt of the certificate of taxation so far as her costs are concerned. 9 The basis for the present application for a stay is that the Full Court decision now can properly be characterised as imminent and, taking into account that 11 days remain in the taxation, it is appropriate to stay the taxation until the outcome of the appeal is known. The respondents submit that they are entitled to have the taxation completed as soon as possible. They point to the length of time since the costs orders were originally made by Graham J, and the fact that Stone J did not consider the fact of the appeal to be sufficient to order a stay of the taxation. 10 It is most unfortunate that a further 11 days will be required, with the associated time and cost involved, before it is expected that the taxation will be completed. That length of time is caused in part by the objections. The applicant is, of course, entitled to object to the taxation and to any part of it. I do not have any evidence before me as to whether or not any of those objections are valid. Nonetheless, it is relevant in this application that there are still 11 days remaining to deal with these objections. However, I do not see that that fact is sufficient to deprive the respondents of the opportunity to have the taxation completed as soon as possible. If the appeal is successful, the applicant is fully protected. 11 In the circumstances, I am not minded to make the order for the stay as sought. I order the applicant to pay the respondents' costs of the motion. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.