B J McAdam Pty Limited v Jax Tyres Pty Limited (No 6) [2014] FCA 384

B J McAdam Pty Limited v Jax Tyres Pty Limited (No 6) [2014] FCA 384

The Court had power to treat judicial advice costs as a potentially recoverable disbursement, but the power should not be exercised because some claims against JFS still remained on foot, apportionment between expired and remaining claims was unclear, possible set-offs could arise if the remaining claims succeeded, and JFS could renew the application if it succeeded on the remaining grounds; the application was therefore premature.

Jurisdiction
Australia
Judgment Date
17 April 2014
Procedural Posture
Costs Application / Second Defendant's Application for an Order That the Plaintiffs Pay Its Costs of Obtaining Judicial Advice in the Supreme Court of New South Wales
Outcome
Second Defendant's application dismissed.
Legal Topics
['costs Incurred in Proceedings in Another Court' 'judicial Advice Under Trustee Act 1925 (nsw) S 63' 'party Party Costs' 'reasonably Incurred Disbursements' 'prematurity of Costs Application']
['practice and Procedure' 'costs' 'trusts'] ['costs Incurred in Proceedings in Another Court' 'judicial Advice Under Trustee Act 1925 (nsw) S 63' 'party Party Costs' 'reasonably Incurred Disbursements' 'prematurity of Costs Application']

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Procedural Posture

Costs Application / Second Defendant's Application for an Order That the Plaintiffs Pay Its Costs of Obtaining Judicial Advice in the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether the Court has power to order that costs incurred by a party in proceedings in another Court be borne by a party before it.' "Whether the Plaintiffs should be ordered to pay the Second Defendant's costs of obtaining judicial advice from the Supreme Court of New South Wales under Trustee Act 1925 (NSW) s 63 in relation to claims no longer pursued." "Whether the Second Defendant's application for those costs was premature while some claims against it remained on foot."]

Ratio Decidendi

The Court had power to treat judicial advice costs as a potentially recoverable disbursement, but the power should not be exercised because some claims against JFS still remained on foot, apportionment between expired and remaining claims was unclear, possible set-offs could arise if the remaining claims succeeded, and JFS could renew the application if it succeeded on the remaining grounds; the application was therefore premature.

Court Disposition

Second Defendant's application dismissed.

Orders

  • ["The Second Defendant's application be dismissed." "The Second Defendant pay the Plaintiffs' costs of resisting that application."]