Westpac Banking Corporation v Wittenberg (No 3) [2016] FCAFC 51

Westpac Banking Corporation v Wittenberg (No 3) [2016] FCAFC 51

The application for indemnity costs based on the 2011 offer of compromise was not entertained because it fell outside the scope of the appeal, Westpac had made no application for leave to amend the notice of appeal, final orders had been entered, and Westpac had not referred to the offer or sought to reserve costs at the hearing or before judgment. Since indemnity costs were refused, no issue arose as to a stay or set-off, and leave to amend the interlocutory application was refused.

Jurisdiction
Australia
Judgment Date
05 April 2016
Procedural Posture
Interlocutory Application in an Appeal / Heard on the Papers After Appeal Judgment Was Delivered and Orders Were Entered
Outcome
Interlocutory application dismissed with costs, if any, in favour of Mr Wittenberg.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'entry of Orders' 'stay of Orders' 'set Off of Costs' 'scope of Appeal']
['practice and Procedure' 'costs'] ['indemnity Costs' 'offer of Compromise' 'entry of Orders' 'stay of Orders' 'set Off of Costs' 'scope of Appeal']

Case Brief

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Procedural Posture

Interlocutory Application in an Appeal / Heard on the Papers After Appeal Judgment Was Delivered and Orders Were Entered

Legal Issues

  1. 1 ["Whether Westpac's post-judgment interlocutory application for indemnity costs was within the scope of the appeal." 'Whether the costs order made in favour of Mr Wittenberg should be vacated or varied after the appeal judgment was delivered and orders were entered.' 'Whether r 25.06 of the Federal Court Rules 2011 (Cth) prevented earlier communication of the 2011 offer of compromise to the Court.' 'Whether Westpac should be granted leave to amend its interlocutory application to seek a stay and set-off.']

Ratio Decidendi

The application for indemnity costs based on the 2011 offer of compromise was not entertained because it fell outside the scope of the appeal, Westpac had made no application for leave to amend the notice of appeal, final orders had been entered, and Westpac had not referred to the offer or sought to reserve costs at the hearing or before judgment. Since indemnity costs were refused, no issue arose as to a stay or set-off, and leave to amend the interlocutory application was refused.

Court Disposition

Interlocutory application dismissed with costs, if any, in favour of Mr Wittenberg.

Orders

  • ['The interlocutory application filed 15 March 2016 be dismissed with costs (if any), as taxed if not agreed.']