Ross (Liquidator) in the matter of Print Mail Logistics (International) Pty Ltd (in liq) v Elias (No 2) [2022] FCA 398

Ross (Liquidator) in the matter of Print Mail Logistics (International) Pty Ltd (in liq) v Elias (No 2) [2022] FCA 398

Indemnity costs were refused because, although potential problems with the appeal's merits were raised at the 28 January 2022 case management hearing, the parties had not yet filed submissions, it was not obvious that the application would fail, the applicants commendably confined the application to two proposed grounds, and there was no apparent reason why the proposed appeal prevented enforcement of the primary judge's costs order; accordingly there was no special or unusual feature warranting departure from party and party costs.

Jurisdiction
Australia
Judgment Date
14 April 2022
Procedural Posture
Costs Application Following Refusal of Application for Extension of Time and Leave to Appeal / Determined on the Papers
Outcome
The respondents' application for indemnity costs was refused; the applicants were ordered to pay the respondents' costs, to be fixed by way of lump sum.
Legal Topics
['indemnity Costs' 'party and Party Costs' 'lump Sum Costs' 'extension of Time and Leave to Appeal']
['costs' 'corporations and Corporate Insolvency'] ['indemnity Costs' 'party and Party Costs' 'lump Sum Costs' 'extension of Time and Leave to Appeal']

Case Brief

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Procedural Posture

Costs Application Following Refusal of Application for Extension of Time and Leave to Appeal / Determined on the Papers

Legal Issues

  1. 1 ["Whether the respondents' costs should be paid on an indemnity basis following refusal of the applicants' application for an extension of time and leave to appeal." 'Whether there was a special or unusual feature warranting departure from the ordinary practice of awarding costs on a party and party basis.' "Whether the respondents' costs should be fixed by way of lump sum."]

Ratio Decidendi

Indemnity costs were refused because, although potential problems with the appeal's merits were raised at the 28 January 2022 case management hearing, the parties had not yet filed submissions, it was not obvious that the application would fail, the applicants commendably confined the application to two proposed grounds, and there was no apparent reason why the proposed appeal prevented enforcement of the primary judge's costs order; accordingly there was no special or unusual feature warranting departure from party and party costs.

Court Disposition

The respondents' application for indemnity costs was refused; the applicants were ordered to pay the respondents' costs, to be fixed by way of lump sum.

Orders

  • ["The applicants pay the respondents' costs of and incidental to this proceeding." "Pursuant to r 40.02(b) Federal Court Rules 2011 (Cth), the respondents' costs be fixed by way of lump sum." 'On or before 4.00 pm 29 April 2022, the respondents shall file and serve any affidavit in the form of a Costs Summary (as...