Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 5) [2020] FCA 440

Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 5) [2020] FCA 440

There was no compelling reason to defer costs pending the stay application; the making of costs orders could be dealt with in any appeal or stay order. The ACCC was the successful party and no special circumstance justified departing from the usual rule that costs follow the event. Given the nature of the litigation, lump sum assessment was appropriate. However, the applicant's recoverable costs should exclude costs relating to the Jarvis affidavit, the unsuccessful 24 April 2019 interlocutory application, and the Cromwell evidence, with the applicant to pay the second and third respondents' costs of that interlocutory application.

Jurisdiction
Australia
Judgment Date
03 April 2020
Procedural Posture
Commercial and Corporations, Regulator and Consumer Protection Proceeding / Determination on the Papers of Costs After Final Orders
Outcome
Costs orders made in favour of the applicant against the second and third respondents, subject to specified exclusions, with costs to be assessed on a lump sum basis if not agreed.
Legal Topics
['australian Consumer Law Contraventions' 'costs Discretion' 'costs Following the Event' 'lump Sum Costs Assessment' 'stay Application Pending Appeal']
['competition and Consumer Law' 'civil Procedure' 'costs'] ['australian Consumer Law Contraventions' 'costs Discretion' 'costs Following the Event' 'lump Sum Costs Assessment' 'stay Application Pending Appeal']

Case Brief

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Procedural Posture

Commercial and Corporations, Regulator and Consumer Protection Proceeding / Determination on the Papers of Costs After Final Orders

Legal Issues

  1. 1 ["Whether determination of costs should be deferred until determination of the second and third respondents' stay application pending appeal." "Whether the second and third respondents should pay the applicant's costs of the proceeding." 'Whether costs should be assessed on a lump sum basis if not agreed.' 'Whether particular costs should be excluded from the costs payable to the applicant.']

Ratio Decidendi

There was no compelling reason to defer costs pending the stay application; the making of costs orders could be dealt with in any appeal or stay order. The ACCC was the successful party and no special circumstance justified departing from the usual rule that costs follow the event. Given the nature of the litigation, lump sum assessment was appropriate. However, the applicant's recoverable costs should exclude costs relating to the Jarvis affidavit, the unsuccessful 24 April 2019 interlocutory application, and the Cromwell evidence, with the applicant to pay the second and third respondents' costs of that interlocutory application.

Court Disposition

Costs orders made in favour of the applicant against the second and third respondents, subject to specified exclusions, with costs to be assessed on a lump sum basis if not agreed.

Orders

  • ["The second and third respondents pay the applicant's costs of, and incidental to, the proceeding, including any reserved costs save for the applicant's costs of the affidavit of Adam Christopher Jarvis affirmed 8 April 2019, the interlocutory application dated 24 April 2019 and the affidavit of Mr Jarvis affirmed...