Shrimp v Landmark Operations Limited (No 2) [2008] FCA 25

Shrimp v Landmark Operations Limited (No 2) [2008] FCA 25

The applicants' application for separate trials would have succeeded had it not been for an arguable plea of proportionate liability put forward late in the process. The delay in raising the decisive issue meant applicants' costs of the application were 'thrown away' and should not be borne by them. Thus, the proper order is that the respondents who opposed the application pay the applicants' costs, jointly and severally. For applications for leave to defend, no order as to costs was made regarding the July 13, 2007 hearing, as defending parties had put forward unarguable positions but were subsequently successful on other grounds; remaining costs were reserved.

Jurisdiction
Australia
Judgment Date
24 January 2008
Procedural Posture
Civil Proceeding / Application for Costs Following Resolution of Interlocutory Motions
Outcome
Costs awarded as specified; some costs reserved; some no order as to costs
Legal Topics
['costs of Interlocutory Applications' 'separate Trials' 'leave to Defend' 'proportionate Liability' 'costs Discretion']
['procedure' 'costs'] ['costs of Interlocutory Applications' 'separate Trials' 'leave to Defend' 'proportionate Liability' 'costs Discretion']

Case Brief

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Procedural Posture

Civil Proceeding / Application for Costs Following Resolution of Interlocutory Motions

Legal Issues

  1. 1 ['Whether the applicants are entitled to their costs of the application for separate trials, despite the application being refused' "Whether costs are 'thrown away' when an application is unsuccessful due to an issue only raised late in the process" 'Appropriate order for costs following applications for leave to defend']

Ratio Decidendi

The applicants' application for separate trials would have succeeded had it not been for an arguable plea of proportionate liability put forward late in the process. The delay in raising the decisive issue meant applicants' costs of the application were 'thrown away' and should not be borne by them. Thus, the proper order is that the respondents who opposed the application pay the applicants' costs, jointly and severally. For applications for leave to defend, no order as to costs was made regarding the July 13, 2007 hearing, as defending parties had put forward unarguable positions but were subsequently successful on other grounds; remaining costs were reserved.

Court Disposition

Costs awarded as specified; some costs reserved; some no order as to costs

Orders

  • ["Landmark Operations Limited, Michael Gargan, Selected Seeds Pty Ltd and Top End Rural Supplies Pty Ltd to pay the applicants' costs of and incidental to the notice of motion dated 24 November 2006, jointly and severally, to be taxed in default of agreement." 'Each liable party may apply for orders as to...