Hypoct Pty Ltd v Mesh & Bar Pty Ltd [2013] FCA 207

Hypoct Pty Ltd v Mesh & Bar Pty Ltd [2013] FCA 207

The application to vary the Costs Order was dismissed because the original order, which required costs to be paid on a party/party basis "as agreed or assessed", did not specifically authorise use of the New South Wales costs assessment regime and, in default of agreement, required taxation under the Federal Court Rules. The applicant had not disclosed its intention to use the New South Wales scheme before the consent order was made, the respondent would not have consented had that intention been disclosed, the Court would not have made such an order in those circumstances, and there was doubt that r 39.05 or any power outside the Court's general powers supported the variation sought.

Jurisdiction
Australia
Judgment Date
12 March 2013
Procedural Posture
Interlocutory Application to Vary a Costs Order / Determined on the Papers
Outcome
Application dismissed.
Legal Topics
['variation of Entered Costs Order' 'federal Court Taxation of Costs' 'state Costs Assessment Scheme' 'consent Costs Order']
['costs' 'civil Procedure'] ['variation of Entered Costs Order' 'federal Court Taxation of Costs' 'state Costs Assessment Scheme' 'consent Costs Order']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Application to Vary a Costs Order / Determined on the Papers

Legal Issues

  1. 1 ['Whether an order that costs be paid on a party/party basis "as agreed or assessed" authorised determination of costs under the New South Wales costs assessment scheme rather than taxation under Pt 40 of the Federal Court Rules 2011.' 'Whether the Court should vary the entered consent costs order to add words referring to the New South Wales costs assessment scheme.' 'Whether any power under r 39.05 of the Federal Court Rules 2011 supported the variation sought.']

Ratio Decidendi

The application to vary the Costs Order was dismissed because the original order, which required costs to be paid on a party/party basis "as agreed or assessed", did not specifically authorise use of the New South Wales costs assessment regime and, in default of agreement, required taxation under the Federal Court Rules. The applicant had not disclosed its intention to use the New South Wales scheme before the consent order was made, the respondent would not have consented had that intention been disclosed, the Court would not have made such an order in those circumstances, and there was doubt that r 39.05 or any power outside the Court's general powers supported the variation sought.

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.' "The applicant pay the respondent's costs of the application on an indemnity basis."]