Strategic Financial and Project Services Pty Limited v Bank of China [2012] FCA 1263

Strategic Financial and Project Services Pty Limited v Bank of China [2012] FCA 1263

It was appropriate to award the second respondent a lump sum of $550,000 in costs instead of taxed costs due to the evidence of delays, further costs, and low prospects of recovery from the applicants, and to call on the $200,000 bank guarantee as security for costs to be paid out to the second respondent.

Parties
First Applicant: Strategic Financial and Project Services Pty Ltd ACN 110 336 966; Second Applicant: Energreen Wind Systems Pty Ltd ACN 100 729 842; First Respondent: Bank of China Limited ARBN 002 979 955; Second Respondent: Commonwealth Bank of Australia ACN 123 123 124
Jurisdiction
Australia
Judgment Date
14 November 2012
Procedural Posture
Interlocutory Application / Costs Determination Post Dismissal of Proceeding Against Second Respondent
Outcome
Orders made in favour of the second respondent for lump sum costs and release of security for costs; any and all costs orders between the applicants and the second respondent discharged.
Legal Topics
Costs, Security for Costs, Lump Sum Costs Order, Release of Security
Civil Procedure Costs Security for Costs Lump Sum Costs Order Release of Security

Case Brief

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Parties

Strategic Financial and Project Services Pty Ltd ACN 110 336 966

First Applicant

Energreen Wind Systems Pty Ltd ACN 100 729 842

Second Applicant

Bank of China Limited ARBN 002 979 955

First Respondent

Commonwealth Bank of Australia ACN 123 123 124

Second Respondent

Procedural Posture

Interlocutory Application / Costs Determination Post Dismissal of Proceeding Against Second Respondent

Legal Issues

  1. 1 Whether the court has power to make a lump sum costs order after a costs order has been entered
  2. 2 Whether it is appropriate to award costs as a lump sum instead of taxed costs
  3. 3 Whether the security for costs should be called on and paid out to the second respondent

Ratio Decidendi

It was appropriate to award the second respondent a lump sum of $550,000 in costs instead of taxed costs due to the evidence of delays, further costs, and low prospects of recovery from the applicants, and to call on the $200,000 bank guarantee as security for costs to be paid out to the second respondent.

Court Disposition

Orders made in favour of the second respondent for lump sum costs and release of security for costs; any and all costs orders between the applicants and the second respondent discharged.

Orders

  • Pursuant to Rule 40.02(b) of the Federal Court Rules, the second respondent's costs of the proceeding be awarded in a lump sum of $550,000, instead of any taxed costs.
  • The District Registrar (NSW Registry) call on the bank guarantee for $200,000 lodged on or about 15 October 2009 and replaced on or about 13 November 2009 as security for costs of the second respondent to the extent of $200,000, and that amount be paid out to the second respondent.