Croft v Evertop Investments Pty Ltd [2014] FCA 1098

Croft v Evertop Investments Pty Ltd [2014] FCA 1098

Nunagin is to pay the respondents' costs of WAD 308, but such costs are not to include the respondents' costs of discovery and inspection in WAD 21 of 2005. The recall and discharge of the 5 October 2012 consent order is warranted as it did not encompass all applicants, and the Croft settlement did not exonerate Nunagin. The application of R 26.12(7) imposes costs liability on Nunagin with no exceptional circumstances to order otherwise, though the respondents' conduct justifies excluding certain costs.

Parties
First Applicant: Rodney Kim Croft & Janice Anne Croft; Fourth Applicant (wad 21 of 2005), First Applicant (wad 308 of 2006): Nunagin Holdings Pty Ltd ACN 990 230 176; First Respondent: Evertop Investments Pty Ltd ACN 091 802 201; Second Respondent: James Alexander Kidd
Jurisdiction
Australia
Judgment Date
10 October 2014
Procedural Posture
Cost Orders Following Discontinuance and Interlocutory Application / Post Discontinuance, Costs Determination
Outcome
Application to rectify the 5 October 2012 order in WAD 21 granted; Nunagin ordered to pay respondents' costs of WAD 308, excepting discovery/inspection costs in WAD 21; no order as to costs for certain interlocutory applications.
Legal Topics
Costs After Discontinuance, Rectification of Consent Orders, Franchising Code of Conduct, Discovery Costs, Misleading or Deceptive Conduct
Civil Procedure Costs Law Franchising Law Costs After Discontinuance Rectification of Consent Orders Franchising Code of Conduct Discovery Costs Misleading or Deceptive Conduct

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Parties

Rodney Kim Croft & Janice Anne Croft

First Applicant

Nunagin Holdings Pty Ltd ACN 990 230 176

Fourth Applicant (wad 21 of 2005), First Applicant (wad 308 of 2006)

Evertop Investments Pty Ltd ACN 091 802 201

First Respondent

James Alexander Kidd

Second Respondent

Procedural Posture

Cost Orders Following Discontinuance and Interlocutory Application / Post Discontinuance, Costs Determination

Legal Issues

  1. 1 Whether consent order of 5 October 2012 in WAD 21 of 2005 should be rectified
  2. 2 Whether terms of settlement between Crofts and respondents exonerated Nunagin from costs liability in WAD 21
  3. 3 Appropriate costs order following discontinuance of proceeding WAD 308 of 2006

Ratio Decidendi

Nunagin is to pay the respondents' costs of WAD 308, but such costs are not to include the respondents' costs of discovery and inspection in WAD 21 of 2005. The recall and discharge of the 5 October 2012 consent order is warranted as it did not encompass all applicants, and the Croft settlement did not exonerate Nunagin. The application of R 26.12(7) imposes costs liability on Nunagin with no exceptional circumstances to order otherwise, though the respondents' conduct justifies excluding certain costs.

Court Disposition

Application to rectify the 5 October 2012 order in WAD 21 granted; Nunagin ordered to pay respondents' costs of WAD 308, excepting discovery/inspection costs in WAD 21; no order as to costs for certain interlocutory applications.

Orders

  • The order of 5 October 2012 in WAD 21 is recalled and discharged.
  • Application by the first applicants against the respondents in WAD 21 is dismissed.