Smith, Anthony Stevens v Deputy Commissioner of Taxation & Ors [1997] FCA 945

Smith, Anthony Stevens v Deputy Commissioner of Taxation & Ors [1997] FCA 945

Because the applicant made O 23 offers which were not accepted and then obtained judgment not less favourable than the offers, O 23 r 11(4) presumptively entitled the applicant to indemnity costs after the offer. The respondent did not establish sufficient reasons for the Court to otherwise order: the applicant's status as liquidator, the asserted complexity of the proceeding, the absence of irresponsible conduct, and the cross-claim did not displace the rule. However, indemnity costs for the identified issues before and up to 4 June 1996 were refused because the evidence did not show that, by that time, the respondent properly advised should have known he had no chance of success or had...

Jurisdiction
Australia
Judgment Date
16 September 1997
Procedural Posture
Costs Application Following Judgment in Unfair Preference Proceedings / Application by Applicant for Indemnity Costs After Judgment
Outcome
Applicant awarded party and party costs up to and including 4 June 1996 and indemnity costs from and after 5 June 1996, excluding costs of an unreasonable amount or unreasonably incurred.
Legal Topics
['offer of Compromise Under O 23' 'indemnity Costs' 'party and Party Costs' 'unfair Preferences' 'voidable Transactions']
['costs' 'civil Procedure' 'corporations Insolvency'] ['offer of Compromise Under O 23' 'indemnity Costs' 'party and Party Costs' 'unfair Preferences' 'voidable Transactions']

Case Brief

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Procedural Posture

Costs Application Following Judgment in Unfair Preference Proceedings / Application by Applicant for Indemnity Costs After Judgment

Legal Issues

  1. 1 ["Whether the applicant was entitled under O 23 r 11(4) of the Federal Court Rules to indemnity costs from 5 June 1996 because judgment was not less favourable than the applicant's offers." 'Whether the Court should otherwise order against the presumptive entitlement to indemnity costs under O 23 r 11(4).' 'Whether indemnity costs should be ordered for issues before the offer on the basis that the respondent should have known he had no real chance of success.']

Ratio Decidendi

Because the applicant made O 23 offers which were not accepted and then obtained judgment not less favourable than the offers, O 23 r 11(4) presumptively entitled the applicant to indemnity costs after the offer. The respondent did not establish sufficient reasons for the Court to otherwise order: the applicant's status as liquidator, the asserted complexity of the proceeding, the absence of irresponsible conduct, and the cross-claim did not displace the rule. However, indemnity costs for the identified issues before and up to 4 June 1996 were refused because the evidence did not show that, by that time, the respondent properly advised should have known he had no chance of success or had...

Court Disposition

Applicant awarded party and party costs up to and including 4 June 1996 and indemnity costs from and after 5 June 1996, excluding costs of an unreasonable amount or unreasonably incurred.

Orders

  • ['The respondent pay to the applicant costs of the action up to and including 4 June 1996 on a party and party basis.' 'The respondent pay to the applicant costs of the action from and after 5 June 1996 on an indemnity basis but so that such costs not include costs of an unreasonable amount or costs which have been...