Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 18) [2011] NSWIRComm 87

Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 18) [2011] NSWIRComm 87

Although the respondents were technically the ultimate victors (by dismissal for want of jurisdiction), significant pre-litigation and litigation conduct by the respondents—including delay in raising the decisive jurisdictional challenge, refusal to concede key factual matters, and breaches of undertakings—increased costs unnecessarily. The applicants also succeeded on significant issues at trial (including a finding of unfairness and relief), and on the balance of fairness and all the circumstances, including the complex, protracted history and 'mixed' results, it would not be just for any party to receive a costs order. Therefore, there shall be no order as to costs.

Parties
First Applicant: Gough & Gilmour Holdings Pty Limited; Second Applicant: Harcourt David Gough; Third Applicant: Anthony Lansley Gilmour; First Respondent: Caterpillar of Australia Limited; Second Respondent: Caterpillar Inc; Third Respondent: Caterpillar SARL; Fourth Respondent: Caterpillar Overseas Credit Corporation SA
Jurisdiction
Australia
Judgment Date
07 July 2011
Procedural Posture
Costs Determination Following Litigation / Post Trial; Following Appellate Remittal to Determine Costs
Outcome
No order as to costs; each party to bear own costs.
Legal Topics
Costs, Unfair Contracts, Jurisdiction, Litigation Conduct
Industrial Relations Civil Procedure Costs Unfair Contracts Jurisdiction Litigation Conduct

Case Brief

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Parties

Gough & Gilmour Holdings Pty Limited

First Applicant

Harcourt David Gough

Second Applicant

Anthony Lansley Gilmour

Third Applicant

Caterpillar of Australia Limited

First Respondent

Caterpillar Inc

Second Respondent

Caterpillar SARL

Third Respondent

Caterpillar Overseas Credit Corporation SA

Fourth Respondent

Procedural Posture

Costs Determination Following Litigation / Post Trial; Following Appellate Remittal to Determine Costs

Legal Issues

  1. 1 Whether the respondents should be ordered to pay the applicants' costs, the applicants to pay the respondents' costs, or if there should be no order as to costs
  2. 2 Whether delay by the respondents in raising a successful jurisdictional challenge and various aspects of their pre- and in-litigation conduct amount to disentitling conduct
  3. 3 What is the appropriate costs order in complex proceedings with findings both ways and significant conduct findings against the respondents

Ratio Decidendi

Although the respondents were technically the ultimate victors (by dismissal for want of jurisdiction), significant pre-litigation and litigation conduct by the respondents—including delay in raising the decisive jurisdictional challenge, refusal to concede key factual matters, and breaches of undertakings—increased costs unnecessarily. The applicants also succeeded on significant issues at trial (including a finding of unfairness and relief), and on the balance of fairness and all the circumstances, including the complex, protracted history and 'mixed' results, it would not be just for any party to receive a costs order. Therefore, there shall be no order as to costs.

Court Disposition

No order as to costs; each party to bear own costs.

Orders

  • There should be no order as to costs.