Sebel Furniture Limited v Acoustic & Felts Pty Limited

REASONS FOR JUDGMENT 1 As will be apparent from the judgment which I delivered a short time ago (Sebel Furniture Limited v Acoustic & Felts Pty Limited (No 2) [2009] FCA 291), my associate was notified yesterday afternoon that the applicant would seek leave to discontinue all of the claims previously made by it, with the exception of those set out in subparagraphs 3(a), 3(b) and 3(c) of the Amended Application filed on 23 December 2008. 2 That intention had been communicated to the solicitors for the respondent somewhat earlier in a facsimile transmission dated 24 March 2009. 3 After I announced my decision on the disqualification application, Counsel for the applicant sought leave to discontinue the proceedings in the particular respects set out in the Notice of Discontinuance dated today, signed by Mr Whitehead and handed up to me. There is no opposition from the solicitor for the respondent to the leave to discontinue sought by the applicant being granted by me and I grant that leave. The Notice of Discontinuance may be filed in Court. 4 There has been a short argument about whether that leave should be on terms that the applicant pay the respondent's costs, or at least some part of them. 5 It will be remembered that, on 12 January 2009, when I delivered judgment on the applicant's interlocutory application (Sebel Furniture Limited v Acoustic & Felts Pty Limited [2009] FCA 6), I made an order for costs in respect of that application, the terms of that particular order being: The applicant pay the respondent's costs of and incidental to the interlocutory hearing which took place before the Court on 23 December last. 6 I have been informed that no further evidence has been filed by either party since the last directions hearing which was held on 5 February 2009. This is not a matter of criticism, as it seems that the parties have been attempting to resolve the matter. 7 I think that costs to date will have been incurred in relation to three broad subject matters, namely: (1) Work done in relation to the interlocutory hearing; (2) Work done on the balance of the proceedings (including the disqualification application but excluding the interlocutory hearing and excluding the Cross-Claim); and (3) Work done in relation to the Cross-Claim. 8 It seems to me that most of the work done to date will have been done in relation to the interlocutory hearing (Item (1)). I have already made an order for costs covering that work. 9 Counsel for the applicant points out to me that the applicant has had success in respect of one of the claims which was the genesis of the proceeding. This is the claim which is being persisted in at the moment, that is to say, the claim set out in subparagraphs 3(a), 3(b) and 3(c) of the Amended Application. This is true, to some extent, although all that has really happened to date in respect of that claim is that the respondent has given an interlocutory undertaking on a without admissions basis. 10 It seems to me that the proper approach to the question of costs thrown up by the discontinuance of much of the applicant's case is that I order that the applicant pay the costs of the respondent incurred up to and including 24 March 2009 in respect of those claims which are the subject of the leave to discontinue which I have granted, but excluding from this order all costs of and incidental to the interlocutory application, all costs incurred to date in respect of the claim set out in subparagraphs 3(a), 3(b) and 3(c) of the Amended Application and the costs of the Cross-Claim. Given the terms of the order for costs which I made earlier today in respect of the disqualification application, the respondent's costs of that application will now be included within the order for costs in its favour which I have just made. 11 As I see matters, this will leave for future consideration the costs of the proceedings insofar as the extant claim made by the applicant is concerned (viz the claim set out in subparagraphs 3(a), 3(b) and 3(c) of the Amended Application) and the costs of the Cross-Claim. For those reasons, I propose to make the order I have indicated. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.