Khoury v Sidhu [2011] FCA 857

Khoury v Sidhu [2011] FCA 857

The respondents were required to pay the applicants' costs of the respondents' notice of motion because the application to amend the defence and file additional affidavits was made on the day the trial was scheduled to begin, the applicants had only recently been notified, substantial amendments introduced new grounds to avoid liability in whole or part, the applicants did not act unreasonably in opposing the amendments or discovery, and the lateness was explained only by a change in legal representation. However, there was no special or unusual feature warranting indemnity costs, no basis to order costs payable forthwith, no present basis to determine adjournment costs reserved by Logan...

Jurisdiction
Australia
Judgment Date
02 August 2011
Procedural Posture
Practice and Procedure; Costs of Interlocutory Notices of Motion / Determination on the Papers of Reserved Costs of the Respondents' Notice of Motion Filed 1 June 2010 and the Applicants' Notice of Motion Dated 12 July 2010 After the Full Court Dismissed the Appeal in Khoury V Sidhu [2011] FCAFC 71
Outcome
Costs orders made partly in favour of the applicants; indemnity costs, costs payable forthwith, and present determination of adjournment costs refused.
Legal Topics
['costs of Interlocutory Applications' 'costs of Successful Application for Indulgence' 'amendment of Defence' 'further Discovery' 'leave to Rely on Affidavit Evidence' 'subpoena' 'indemnity Costs' 'costs Payable Forthwith' 'concurrent Wrongdoers']
['practice and Procedure' 'costs' 'civil Procedure'] ['costs of Interlocutory Applications' 'costs of Successful Application for Indulgence' 'amendment of Defence' 'further Discovery' 'leave to Rely on Affidavit Evidence' 'subpoena' 'indemnity Costs' 'costs Payable Forthwith' 'concurrent Wrongdoers']

Case Brief

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Procedural Posture

Practice and Procedure; Costs of Interlocutory Notices of Motion / Determination on the Papers of Reserved Costs of the Respondents' Notice of Motion Filed 1 June 2010 and the Applicants' Notice of Motion Dated 12 July 2010 After the Full Court Dismissed the Appeal in Khoury V Sidhu [2011] FCAFC 71

Legal Issues

  1. 1 ["Whether the respondents should pay the applicants' costs of and incidental to the respondents' notice of motion filed 1 June 2010." "Whether costs of the respondents' motion should be assessed on an indemnity basis or paid forthwith." 'Whether the costs thrown away by reason of the adjournment of the trial should be determined at this stage.' 'Whether s 87CE of the Trade Practices Act 1974 (Cth) applied to the costs sought by the applicants.' "What costs order should be made in relation to the applicants' notice of motion dated 12 July 2010 seeking leave to issue a subpoena to Mr Stephenson."]

Ratio Decidendi

The respondents were required to pay the applicants' costs of the respondents' notice of motion because the application to amend the defence and file additional affidavits was made on the day the trial was scheduled to begin, the applicants had only recently been notified, substantial amendments introduced new grounds to avoid liability in whole or part, the applicants did not act unreasonably in opposing the amendments or discovery, and the lateness was explained only by a change in legal representation. However, there was no special or unusual feature warranting indemnity costs, no basis to order costs payable forthwith, no present basis to determine adjournment costs reserved by Logan...

Court Disposition

Costs orders made partly in favour of the applicants; indemnity costs, costs payable forthwith, and present determination of adjournment costs refused.

Orders

  • ["The respondents pay the applicants' costs of and incidental to the notice of motion filed 1 June 2010." "The applicants' costs of and incidental to its notice of motion dated 12 July 2010 are the applicants' costs in the cause."]