Sartori v BM2008 Pty Ltd

Federal Court of Australia|2010-11-30|Before: McKerracher J

INTRODUCTION 1 In Sartori v BM2008 Pty Ltd (No 2) [2010] FCA 1160 (Sartori No 2) I gave leave, amongst other things, for various parties to be added as applicants, leave for the joinder of various respondents, leave to amend the application and leave to amend the statement of claim. I ordered that costs of the motion be in the cause (or in the proceeding). I also ordered that any party wishing to make costs submissions to the contrary should file and serve submissions within 14 days, failing which the costs order would stand. 2 My reasoning in relation to costs was expressed in [62] of Sartori No 2 as follows: Although Mr Sartori and now the proposed applicants have ultimately succeeded on this motion, that success has come about only after a period of extensive and repeated delay and disregard for directions made by the Court by Mr Sartori and formerly by Mr Small. The final form of the relief as argued orally differed on a significant point of principle from that initially pursued and did so on a basis raised, correctly, by the respondents (for example, the addition of rather than substitution of the assignee applicants). In all those circumstances, I consider the most appropriate costs order is that costs be in the cause. I will allow any party who disagrees with such an order to make submissions within 14 days, failing which the order will stand. 3 The applicants and the second to fifth respondents (not the first respondent) have each pressed for costs orders in their respective favour.

THE APPLICANTS' ARGUMENT 9 The applicants note that the judgment did recognise that there were reasons for some of the delay of the prosecution of the notice of motion including proceedings in Victoria and actions taken by the liquidator. 10 The applicants make the point that the respondents have already clearly identified dates on which the applicants have already been ordered to pay costs associated with any adjournment caused by the conduct of the applicants. The orders sought by the respondents, they argue, would be a form of 'double dipping'. 11 The applicants' submissions go into detail as to the reasons for various adjournments. I do not propose to exhaustively record and consider those matters. The applicants argue that costs thrown away by reason of the amendment to the statement of claim are costs that do not need any order as they are covered by the Rules. They do not indicate which Rule covers this proposition. 12 The applicants argue that the only question arising is the costs of the day on which they succeeded in all aspects and they contend they should have the costs of the motion to be taxed and paid forthwith.

CONSIDERATION 13 I can say at once there is no basis for either party to have costs taxed and paid forthwith as each contends. 14 My reasoning on the question of costs was relatively simple and is set out in [62] of Sartori No 2. Shortly put, the conduct of the applicants in bringing this matter to a head has been significantly deficient. As against that, the second to fifth respondents unsuccessfully opposed the applicants' motion on the day. In my view a reasonable balance of the costs disposition was that costs be in the cause. 15 The applicants caused the delay prior to the hearing of the motion and the respondents lost the motion on the day when there was no particularly meritorious basis for opposing the motion as ultimately formulated. It is clear that the parties have incurred an obligation to meet legal expenses. If the applicants succeed, they should have their costs. If the respondents succeed, they should have their costs. 16 In dealing with all of this, I take into account, in any event, that in relation to some of the previously adjourned applications, a costs order in favour of the respondents was expressly made in any event. There will be no change to the costs order made in Sartori No 2. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

The orders made in Sartori v BM2008 Pty Ltd (No 2) [2010] FCA 1160 remain unchanged. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (4 paragraphs)

Parties

Cases Cited (1)