Danaris Pty Ltd v J & M United Pty Ltd (No 2) [2011] FCA 281

Danaris Pty Ltd v J & M United Pty Ltd (No 2) [2011] FCA 281

There were no special circumstances justifying departure from the normal rule that costs follow the event, so the respondent was entitled to its costs of the dismissed appeal and the cross-respondents were entitled to their costs of the dismissed cross-appeal. Apportionment between the appeal and cross-appeal was a matter for taxation rather than a separate apportionment order. Because the O 23 offer had been made in the primary proceeding and indemnity costs consequences had already been determined there, no O 23 presumption arose in the separate appeal proceeding; absent any offer in the appeal or other special or unusual feature, costs were to be awarded on a party and party basis...

Jurisdiction
Australia
Judgment Date
29 March 2011
Procedural Posture
Costs Determination on Appeal and Cross Appeal / After Appeal and Cross Appeal Dismissed; Costs Reserved and Determined on Written Submissions
Outcome
Costs ordered to follow the event; no apportionment order made; indemnity costs refused.
Legal Topics
['costs Following the Event' 'apportionment of Costs Between Appeal and Cross Appeal' 'offer of Compromise Under O 23 of the Federal Court Rules' 'indemnity Costs' 'party and Party Costs']
['costs' 'civil Procedure' 'appellate Procedure'] ['costs Following the Event' 'apportionment of Costs Between Appeal and Cross Appeal' 'offer of Compromise Under O 23 of the Federal Court Rules' 'indemnity Costs' 'party and Party Costs']

Case Brief

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Procedural Posture

Costs Determination on Appeal and Cross Appeal / After Appeal and Cross Appeal Dismissed; Costs Reserved and Determined on Written Submissions

Legal Issues

  1. 1 ['Whether costs should follow the event where both the appeal and cross-appeal were dismissed.' 'Whether the Court should apportion costs between the appeal and the cross-appeal.' 'Whether an offer of compromise made in the primary proceeding under O 23 of the Federal Court Rules justified indemnity costs on the appeal.' 'Whether there was any special or unusual feature justifying indemnity costs.']

Ratio Decidendi

There were no special circumstances justifying departure from the normal rule that costs follow the event, so the respondent was entitled to its costs of the dismissed appeal and the cross-respondents were entitled to their costs of the dismissed cross-appeal. Apportionment between the appeal and cross-appeal was a matter for taxation rather than a separate apportionment order. Because the O 23 offer had been made in the primary proceeding and indemnity costs consequences had already been determined there, no O 23 presumption arose in the separate appeal proceeding; absent any offer in the appeal or other special or unusual feature, costs were to be awarded on a party and party basis...

Court Disposition

Costs ordered to follow the event; no apportionment order made; indemnity costs refused.

Orders

  • ["The appellants pay the respondent's costs of the appeal as agreed or taxed." "The cross-appellant pay the cross-respondents' costs of the cross-appeal as agreed or taxed."]