Belconnen Lakeview Pty Ltd v Lloyd (No 2) [2021] FCAFC 218

Belconnen Lakeview Pty Ltd v Lloyd (No 2) [2021] FCAFC 218

Rectification of [194] was unnecessary because the paragraph did not make findings and, read in context, referred to contracts exchanged after the Altitude Private Ruling. The application to terminate the representative proceeding was rejected because the disputed issues and proposed notice were more appropriately dealt with by the primary judge. Costs were ordered to follow the event on a party-party basis, with separate costs consequences for Belconnen's unsuccessful interlocutory applications. Indemnity costs were refused because it was not unreasonable for Mrs Lloyd to reject either Calderbank offer given the timing, likely limited return to group members, and practical delay,...

Jurisdiction
Australia
Judgment Date
01 December 2021
Procedural Posture
Appeal, Cross Appeal and Cross Cross Appeal Concerning Consequential Orders and Costs / Full Court Determination on the Papers After Judgment on the Appeal, Cross Appeal and Cross Cross Appeal
Outcome
Belconnen's interlocutory applications were dismissed; the matter was remitted to the primary judge; costs were ordered on a party-party basis with lump sum costs assessment; indemnity costs were refused.
Legal Topics
['costs Follow the Event' 'party Party Costs' 'indemnity Costs' 'calderbank Offers' 'consequential Orders' 'rectification of Reasons' 'remittal to Primary Judge' 'lump Sum Costs Assessment']
['practice and Procedure' 'costs' 'representative Proceedings'] ['costs Follow the Event' 'party Party Costs' 'indemnity Costs' 'calderbank Offers' 'consequential Orders' 'rectification of Reasons' 'remittal to Primary Judge' 'lump Sum Costs Assessment']

Case Brief

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Procedural Posture

Appeal, Cross Appeal and Cross Cross Appeal Concerning Consequential Orders and Costs / Full Court Determination on the Papers After Judgment on the Appeal, Cross Appeal and Cross Cross Appeal

Legal Issues

  1. 1 ['Whether paragraph [194] of the October 2021 Reasons should be rectified under rr 1.32 and 39.05 of the Federal Court Rules 2011.' 'Whether the proceeding at first instance should no longer continue as a representative proceeding under ss 23, 33N(1) and/or 33ZF of the Federal Court of Australia Act 1976 (Cth).' 'Whether costs of the appeal, cross-appeal, cross-cross-appeal and proceeding at first instance should follow the event.' 'Whether costs should be ordered on an indemnity basis by reason of two Calderbank letters.']

Ratio Decidendi

Rectification of [194] was unnecessary because the paragraph did not make findings and, read in context, referred to contracts exchanged after the Altitude Private Ruling. The application to terminate the representative proceeding was rejected because the disputed issues and proposed notice were more appropriately dealt with by the primary judge. Costs were ordered to follow the event on a party-party basis, with separate costs consequences for Belconnen's unsuccessful interlocutory applications. Indemnity costs were refused because it was not unreasonable for Mrs Lloyd to reject either Calderbank offer given the timing, likely limited return to group members, and practical delay,...

Court Disposition

Belconnen's interlocutory applications were dismissed; the matter was remitted to the primary judge; costs were ordered on a party-party basis with lump sum costs assessment; indemnity costs were refused.

Orders

  • ['The interlocutory application filed by the appellant (Belconnen) dated 21 April 2021 be dismissed.' "Belconnen's interlocutory application dated 8 November 2021 be dismissed." 'The matter be remitted to the primary judge.' "Subject to paragraph 5, the respondent (Mrs Lloyd) pay Belconnen's costs of the appeal and...