Campaign Master (UK) Limited v Forty Two International Pty Ltd (No 5) [2010] FCA 545

Campaign Master (UK) Limited v Forty Two International Pty Ltd (No 5) [2010] FCA 545

Although the applicants had breached the implied obligation by using documents and information produced under subpoena in the 651 proceeding for the 2018 proceeding, the evidence did not establish that Mr Petrucco acted consciously in breach of that obligation, incompetently to the degree alleged, or unreasonably in defending the applicants' position. The respondents were unsuccessful in obtaining a stay or dismissal, although they established the breach. Given the mixed success on the motions and the interwoven nature of the evidence and submissions, it was inappropriate to apportion costs by issues. The fair and proper order was that costs lie where they fall, with each party bearing...

Jurisdiction
Australia
Judgment Date
01 June 2010
Procedural Posture
Costs / Determination of Appropriate Costs Orders Arising From Three Notices of Motion Heard Together
Outcome
Each party was ordered to bear his or its own costs of and in relation to the relevant notices of motion; no personal indemnity costs order was made against Mr Petrucco.
Legal Topics
['costs Following Mixed Success on Motions' 'personal Costs Order Against Solicitor' 'indemnity Costs' 'implied Obligation as to Use of Documents Produced Under Subpoena' 'apportionment of Costs by Issues']
['civil Procedure' 'costs'] ['costs Following Mixed Success on Motions' 'personal Costs Order Against Solicitor' 'indemnity Costs' 'implied Obligation as to Use of Documents Produced Under Subpoena' 'apportionment of Costs by Issues']

Case Brief

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Procedural Posture

Costs / Determination of Appropriate Costs Orders Arising From Three Notices of Motion Heard Together

Legal Issues

  1. 1 ['What costs orders should be made where three notices of motion in two proceedings were heard together and the parties had mixed success.' "Whether the applicants' solicitor, Mr Petrucco, should personally pay the respondents' costs on an indemnity basis in respect of the issue that the 2018 proceeding was instituted in breach of an implied obligation." 'Whether costs should be apportioned by issues where the evidence and submissions were interwoven.']

Ratio Decidendi

Although the applicants had breached the implied obligation by using documents and information produced under subpoena in the 651 proceeding for the 2018 proceeding, the evidence did not establish that Mr Petrucco acted consciously in breach of that obligation, incompetently to the degree alleged, or unreasonably in defending the applicants' position. The respondents were unsuccessful in obtaining a stay or dismissal, although they established the breach. Given the mixed success on the motions and the interwoven nature of the evidence and submissions, it was inappropriate to apportion costs by issues. The fair and proper order was that costs lie where they fall, with each party bearing...

Court Disposition

Each party was ordered to bear his or its own costs of and in relation to the relevant notices of motion; no personal indemnity costs order was made against Mr Petrucco.

Orders

  • ['In NSD 651 of 2008, each of the respondents, and Albert Kim Barnes and Lee Paul Hawksley (Messrs Barnes and Hawksley) are to bear its or his own costs of and in relation to the notice of motion filed on 4 December 2009 by Messrs Barnes and Hawksley.' 'In NSD 2018 of 2008, each of the parties is to bear its or his...