Sensis Pty Ltd v Bivami Pty Ltd (No 2) [2012] FCA 1449

Sensis Pty Ltd v Bivami Pty Ltd (No 2) [2012] FCA 1449

Indemnity costs were refused because the material non-disclosure, although unfortunate, did not amount to relevant delinquency and occurred in urgent circumstances, with the applicants promptly correcting the mistake. Costs of AETL's joinder and cross-claim aspects were not ordered against the applicants because those applications were not opposed. Immediate payment of costs was refused because there was no deliberate attempt to mislead the Court, the dissolution of interlocutory injunctions was not a sufficiently clear or discrete aspect of the proceedings, and the case was not one where final disposition was a long way off.

Jurisdiction
Australia
Judgment Date
18 December 2012
Procedural Posture
Costs Application / Determined on the Papers After Costs Were Reserved Following Interlocutory Applications
Outcome
Costs orders made; indemnity costs and immediate payment of costs refused.
Legal Topics
['indemnity Costs' 'costs of Interlocutory Applications' 'immediate Payment of Costs' 'interlocutory Injunctions' 'joinder' 'cross Claims' 'separate Questions']
['costs' 'civil Procedure'] ['indemnity Costs' 'costs of Interlocutory Applications' 'immediate Payment of Costs' 'interlocutory Injunctions' 'joinder' 'cross Claims' 'separate Questions']

Case Brief

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Procedural Posture

Costs Application / Determined on the Papers After Costs Were Reserved Following Interlocutory Applications

Legal Issues

  1. 1 ["Whether AETL should receive indemnity costs of its interlocutory application filed on 15 November 2012 and amended on 29 November 2012 and of the applicants' interlocutory application dated 19 November 2012." 'Whether costs orders in favour of AETL should be payable immediately.' "What costs orders should be made in relation to Westpac, AETL's joinder and cross-claim application, dissolution of interlocutory injunctions, and the applicants' application for separate questions."]

Ratio Decidendi

Indemnity costs were refused because the material non-disclosure, although unfortunate, did not amount to relevant delinquency and occurred in urgent circumstances, with the applicants promptly correcting the mistake. Costs of AETL's joinder and cross-claim aspects were not ordered against the applicants because those applications were not opposed. Immediate payment of costs was refused because there was no deliberate attempt to mislead the Court, the dissolution of interlocutory injunctions was not a sufficiently clear or discrete aspect of the proceedings, and the case was not one where final disposition was a long way off.

Court Disposition

Costs orders made; indemnity costs and immediate payment of costs refused.

Orders

  • ["The applicants are to pay the costs of the second respondent in respect of the applicants' applications for injunctive relief heard on 13 and 29 November 2012." "The applicants are to pay the third respondent's (AETL's) costs of that aspect of the interlocutory application filed by the third respondent on 15...