Smolle v Australia and New Zealand Banking Group Limited (No 2) [2007] FCA 1967

Smolle v Australia and New Zealand Banking Group Limited (No 2) [2007] FCA 1967

Indemnity costs were warranted because the Deed of Release provided a complete and unanswerable defence to the applicants' claim against the Bank, the applicants had been alerted to that defence before and during the proceeding, and properly advised they ought to have known their case was clearly foredoomed to fail. Persisting with the claim in those circumstances constituted special or unusual circumstances justifying departure from party and party costs.

Jurisdiction
Australia
Judgment Date
12 December 2007
Procedural Posture
Costs Application Following Summary Dismissal / Determination of the First Respondent's Application for Indemnity Costs After Summary Dismissal of the Applicants' Claim Against It
Outcome
The first respondent's application for indemnity costs was granted.
Legal Topics
['indemnity Costs' 'solicitor and Own Client Costs' 'party and Party Costs' 'summary Dismissal' 'deed of Release' 'security for Costs']
['costs' 'civil Procedure'] ['indemnity Costs' 'solicitor and Own Client Costs' 'party and Party Costs' 'summary Dismissal' 'deed of Release' 'security for Costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs Application Following Summary Dismissal / Determination of the First Respondent's Application for Indemnity Costs After Summary Dismissal of the Applicants' Claim Against It

Legal Issues

  1. 1 ["Whether the applicants should pay the first respondent's costs on an indemnity basis rather than on a party and party basis." 'Whether solicitor and own client costs were available as an alternative to indemnity costs.' 'Whether the applicants commenced and continued proceedings in circumstances where they ought to have known they had no chance of success because of the Deed of Release.' "Whether monies held by the first respondent's solicitors as security for costs should be released to the first respondent."]

Ratio Decidendi

Indemnity costs were warranted because the Deed of Release provided a complete and unanswerable defence to the applicants' claim against the Bank, the applicants had been alerted to that defence before and during the proceeding, and properly advised they ought to have known their case was clearly foredoomed to fail. Persisting with the claim in those circumstances constituted special or unusual circumstances justifying departure from party and party costs.

Court Disposition

The first respondent's application for indemnity costs was granted.

Orders

  • ["The applicants pay the first respondent's costs, including reserved costs, such costs to be taxed in default of agreement, and on an indemnity basis." "The monies presently held by the first respondent's solicitors be released to the first respondent as part of the costs recoverable against the applicants."]