Axis Investment Centre Pty Ltd v Mathew [2016] FCA 1562

Axis Investment Centre Pty Ltd v Mathew [2016] FCA 1562

The first, second and third respondents were entitled to their costs on the usual basis for the abandoned claims and for bringing the s 31A application because the applicants had been given opportunities to abandon the claims but reserved, pressed and proposed to add to them before ultimately abandoning them, causing unnecessary wasted costs. Indemnity costs were refused because there had been no adjudication of the merits and the Court was not satisfied, in the exercise of the s 43 discretion, that such an order ought or could be made.

Jurisdiction
Australia
Judgment Date
21 December 2016
Procedural Posture
Commercial and Corporations Proceeding Concerning Commercial Contracts, Banking, Finance and Insurance / Disposition of an Oral Interlocutory Application for Leave to Amend the Originating Application and Associated Costs Issues at a Case Management Hearing
Outcome
Leave to amend was granted; the applicants were ordered to pay the first, second and third respondents' costs of and incidental to the abandoned claims and of the s 31A application on the usual basis, with leave to tax and recover those costs immediately; indemnity costs were refused.
Legal Topics
['leave to Amend Originating Application' 'abandoned Claims' 'summary Judgment Under S 31 a of the Federal Court of Australia Act 1976 (cth)' 'indemnity Costs' 'taxation and Recovery of Costs' 'settlement Deed']
['practice and Procedure' 'commercial and Corporations' 'costs'] ['leave to Amend Originating Application' 'abandoned Claims' 'summary Judgment Under S 31 a of the Federal Court of Australia Act 1976 (cth)' 'indemnity Costs' 'taxation and Recovery of Costs' 'settlement Deed']

Case Brief

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Procedural Posture

Commercial and Corporations Proceeding Concerning Commercial Contracts, Banking, Finance and Insurance / Disposition of an Oral Interlocutory Application for Leave to Amend the Originating Application and Associated Costs Issues at a Case Management Hearing

Legal Issues

  1. 1 ['Whether the applicants should have leave to amend the Originating Application to abandon or alter claims including claims based on alleged misrepresentations.' 'Whether the first, second and third respondents should receive costs of and incidental to the abandoned claims.' 'Whether the first, second and third respondents should receive the costs of their s 31A summary judgment application filed on 29 November 2016.' 'Whether those costs should be awarded on an indemnity basis or on the usual basis.' 'Whether the first, second and third respondents should have leave to tax and recover the wasted costs immediately.']

Ratio Decidendi

The first, second and third respondents were entitled to their costs on the usual basis for the abandoned claims and for bringing the s 31A application because the applicants had been given opportunities to abandon the claims but reserved, pressed and proposed to add to them before ultimately abandoning them, causing unnecessary wasted costs. Indemnity costs were refused because there had been no adjudication of the merits and the Court was not satisfied, in the exercise of the s 43 discretion, that such an order ought or could be made.

Court Disposition

Leave to amend was granted; the applicants were ordered to pay the first, second and third respondents' costs of and incidental to the abandoned claims and of the s 31A application on the usual basis, with leave to tax and recover those costs immediately; indemnity costs were refused.

Orders

  • ['The applicants file and serve an Amended Originating Application in terms of the proposed Amended Originating Application the subject of the interlocutory application by the applicants which was to be filed on 13 December 2016 and although not filed was nevertheless relied upon by the applicants at a case...