Strategic Financial and Project Services Pty Limited v Bank of China [2012] FCA 1008

Strategic Financial and Project Services Pty Limited v Bank of China [2012] FCA 1008

The Court had power under r 40.02 and s 43(3)(a), and if necessary r 39.05, to make a lump sum costs order ancillary to the earlier costs order. A lump sum order was appropriate because taxation would be time-consuming and expensive, the applicants were unlikely to discharge the costs liability or further taxation costs, and the evidence showed the first respondent's recoverable costs exceeded the proposed lump sum after allowing credit for the applicants' costs order on the unsuccessful strike out application. The bank guarantee should be called on and paid to the first respondent to the extent of $250,000.

Jurisdiction
Australia
Judgment Date
12 September 2012
Procedural Posture
Interlocutory Application for Lump Sum Costs Order and Release of Security for Costs / After Dismissal of Proceeding Against the First Respondent and Costs Order in Its Favour
Outcome
Interlocutory application granted; lump sum costs order made and security ordered to be paid to the first respondent.
Legal Topics
['lump Sum Costs Order' 'taxation of Costs' 'security for Costs' 'release of Bank Guarantee' 'variation of Entered Orders']
['costs' 'practice and Procedure'] ['lump Sum Costs Order' 'taxation of Costs' 'security for Costs' 'release of Bank Guarantee' 'variation of Entered Orders']

Case Brief

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Procedural Posture

Interlocutory Application for Lump Sum Costs Order and Release of Security for Costs / After Dismissal of Proceeding Against the First Respondent and Costs Order in Its Favour

Legal Issues

  1. 1 ["Whether the Court had power to order the first respondent's costs in a lump sum instead of any taxed costs after an order for costs had been entered." 'Whether it was appropriate to make a lump sum costs order of $950,000.' "What order should be made in relation to the bank guarantee lodged as security for the first respondent's costs."]

Ratio Decidendi

The Court had power under r 40.02 and s 43(3)(a), and if necessary r 39.05, to make a lump sum costs order ancillary to the earlier costs order. A lump sum order was appropriate because taxation would be time-consuming and expensive, the applicants were unlikely to discharge the costs liability or further taxation costs, and the evidence showed the first respondent's recoverable costs exceeded the proposed lump sum after allowing credit for the applicants' costs order on the unsuccessful strike out application. The bank guarantee should be called on and paid to the first respondent to the extent of $250,000.

Court Disposition

Interlocutory application granted; lump sum costs order made and security ordered to be paid to the first respondent.

Orders

  • ["Pursuant to Rule 40.02(b) of the Federal Court Rules, the first respondent's costs of the proceeding be awarded in a lump sum of $950,000, instead of any taxed costs." 'The District Registrar (NSW Registry) call on the bank guarantee for $250,000 lodged on or about 16 November 2009 as security for costs of the...