Food Improvers Pty Ltd v BGR Corporation Pty Ltd (In Liq) (No 9) [2008] FCA 413

Food Improvers Pty Ltd v BGR Corporation Pty Ltd (In Liq) (No 9) [2008] FCA 413

Order 1 made on 28 February 2007 was clear and required Triad and Cordato Partners (Services) to repay 90% of the amounts actually paid by BGR for or in respect of defendants' legal costs and disbursements; because GST formed part of those amounts paid, the GST component was included. Any argument about adjustment for GST should have been raised before the final order was made, and there was no basis to reopen or alter the order under the slip rule or inherent jurisdiction.

Jurisdiction
Australia
Judgment Date
11 March 2008
Procedural Posture
On Appeal From the Federal Magistrates Court of Australia; Interlocutory Process Brought by the Liquidator of BGR Corporation Pty Ltd (in Liq) / Interlocutory Process to Quantify an Earlier Costs Repayment Order and Determine Liability for the GST Component
Outcome
Interlocutory process granted; further judgment entered for BGR Corporation Pty Ltd (in liquidation) against Triad and Cordato Partners (Services), and the amount required to satisfy the earlier 90% costs order was declared.
Legal Topics
['quantification of Costs Order' 'gst Component of Legal Costs and Disbursements' 'slip Rule' 'finality of Litigation' 'summary Judgment Under Section 31 A(1) of the Federal Court of Australia Act 1976 (cth)']
['civil Procedure' 'costs' 'taxation' 'corporations and Insolvency'] ['quantification of Costs Order' 'gst Component of Legal Costs and Disbursements' 'slip Rule' 'finality of Litigation' 'summary Judgment Under Section 31 A(1) of the Federal Court of Australia Act 1976 (cth)']

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Procedural Posture

On Appeal From the Federal Magistrates Court of Australia; Interlocutory Process Brought by the Liquidator of BGR Corporation Pty Ltd (in Liq) / Interlocutory Process to Quantify an Earlier Costs Repayment Order and Determine Liability for the GST Component

Legal Issues

  1. 1 ['Whether the 90% costs order made on 28 February 2007 included the GST component of amounts paid by BGR for legal costs and disbursements.' 'Whether Cordato Partners (Services) Pty Ltd could resist payment of the GST component after the final order had been made.' "Whether the order should be reopened or corrected under O 35 r 7 of the Federal Court Rules or the Court's inherent jurisdiction." 'What amount was required to satisfy Order 1 made on 28 February 2007 as at 29 February 2008.']

Ratio Decidendi

Order 1 made on 28 February 2007 was clear and required Triad and Cordato Partners (Services) to repay 90% of the amounts actually paid by BGR for or in respect of defendants' legal costs and disbursements; because GST formed part of those amounts paid, the GST component was included. Any argument about adjustment for GST should have been raised before the final order was made, and there was no basis to reopen or alter the order under the slip rule or inherent jurisdiction.

Court Disposition

Interlocutory process granted; further judgment entered for BGR Corporation Pty Ltd (in liquidation) against Triad and Cordato Partners (Services), and the amount required to satisfy the earlier 90% costs order was declared.

Orders

  • ["Orders that the form of order filed on 12 March 2007 and entered on 1 May 2007 purporting to reflect the order made by Rares J on 28 February 2007 commencing with the words 'by consent, the court orders that' be amended, pursuant to O 35 r 7(2)(e) of the Federal Court Rules, to delete the words 'by consent'."...