Forbes Engineering (Asia) Pte Limited v Forbes (No 5) [2009] FCA 873

Forbes Engineering (Asia) Pte Limited v Forbes (No 5) [2009] FCA 873

Because the applicants succeeded against the first respondent on the 1998 Profit Shortfall but failed on the larger 1999 Profit Shortfall and against the second respondent, while the respondents failed on most substantive defences and only partly succeeded on the notice of motion, there was no overall victor in the substantive proceedings or the 12 September 2007 notice of motion. The respondents were, however, entitled to costs of the 18 January 2007 interlocutory application because they successfully obtained non-party discovery from Deloitte Touche Tohmatsu. The second respondent was not awarded costs because she took no active part in the proceedings and the defence was jointly...

Jurisdiction
Australia
Judgment Date
14 August 2009
Procedural Posture
Costs Judgment in Federal Court Proceeding / Determination of Costs Following Substantive Judgment and Notice of Motion
Outcome
Respondents awarded costs of the interlocutory application filed 18 January 2007; otherwise no order as to costs between the applicants and respondents.
Legal Topics
['discretion to Award Costs' 'costs Follow the Event' 'issue Based Costs Apportionment' 'interlocutory Application for Non Party Discovery' 'exclusion of Evidence Under the Evidence Act 1995 (cth)' 'costs Where a Respondent Was Not Active in Proceedings']
['costs' 'civil Procedure' 'evidence'] ['discretion to Award Costs' 'costs Follow the Event' 'issue Based Costs Apportionment' 'interlocutory Application for Non Party Discovery' 'exclusion of Evidence Under the Evidence Act 1995 (cth)' 'costs Where a Respondent Was Not Active in Proceedings']

Case Brief

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Procedural Posture

Costs Judgment in Federal Court Proceeding / Determination of Costs Following Substantive Judgment and Notice of Motion

Legal Issues

  1. 1 ['Whether the applicants or respondents should recover costs where both sides were partially successful in the substantive proceedings.' 'Whether the respondents should recover costs of the interlocutory application filed 18 January 2007 for discovery from Deloitte Touche Tohmatsu.' 'Whether any costs order should be made for or against the second respondent, who was found not liable but took no active part in the proceedings.' 'Whether there should be a costs order for the notice of motion filed 12 September 2007, on which the respondents were partly successful in obtaining exclusion of evidence but unsuccessful in seeking a permanent stay.']

Ratio Decidendi

Because the applicants succeeded against the first respondent on the 1998 Profit Shortfall but failed on the larger 1999 Profit Shortfall and against the second respondent, while the respondents failed on most substantive defences and only partly succeeded on the notice of motion, there was no overall victor in the substantive proceedings or the 12 September 2007 notice of motion. The respondents were, however, entitled to costs of the 18 January 2007 interlocutory application because they successfully obtained non-party discovery from Deloitte Touche Tohmatsu. The second respondent was not awarded costs because she took no active part in the proceedings and the defence was jointly...

Court Disposition

Respondents awarded costs of the interlocutory application filed 18 January 2007; otherwise no order as to costs between the applicants and respondents.

Orders

  • ["The applicants are liable for the respondents' costs of and incidental to the application filed 18 January 2007." 'Otherwise as between the applicants and the respondents there shall be no order as to costs.']