Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69

Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69

The Consent Costs Order was in the usual form requiring Bookarelli to pay Katanga's costs of the proceedings as between Katanga and Bookarelli, and its language covered the whole proceedings including Katanga's successful application for freezing orders. The Vacating Order removed the earlier Interim Costs Order but did not create any inconsistency with the Consent Costs Order applying to those costs. The Consent Costs Order did not implicitly incorporate the rule of thumb or limit Bookarelli's liability to 50 per cent of common costs. The rule of thumb was not a binding rule of law and, in any event, was only a guide dependent on circumstances. Accordingly, the District Court did not...

Jurisdiction
Australia
Judgment Date
05 April 2017
Procedural Posture
Judicial Review / Application in the New South Wales Court of Appeal for Judicial Review of a District Court Decision on Appeal From a Costs Review Panel
Outcome
The Amended Summons was dismissed and Bookarelli was ordered to pay Katanga's costs, with written submissions to be filed on whether costs should be on an indemnity basis.
Legal Topics
['judicial Review for Jurisdictional Error' 'assessment of Party and Party Costs' 'costs Review Panel' 'construction of Consent Costs Orders' 'rule of Thumb in Multiple Defendant Costs Cases' 'freezing Order Costs']
['administrative Law' 'civil Procedure' 'costs' 'legal Profession'] ['judicial Review for Jurisdictional Error' 'assessment of Party and Party Costs' 'costs Review Panel' 'construction of Consent Costs Orders' 'rule of Thumb in Multiple Defendant Costs Cases' 'freezing Order Costs']

Case Brief

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Procedural Posture

Judicial Review / Application in the New South Wales Court of Appeal for Judicial Review of a District Court Decision on Appeal From a Costs Review Panel

Legal Issues

  1. 1 ["Whether the District Court committed jurisdictional error by failing to hold that the Costs Review Panel was required to apply the so-called rule of thumb so that Bookarelli paid half of Katanga's common costs and all costs specific to Bookarelli." "Whether the District Court erred in construing the Consent Costs Order as requiring Bookarelli to pay Katanga's costs of the application for freezing orders, including deed administrator costs." 'Whether the Consent Costs Order implicitly incorporated a limitation derived from the rule of thumb.' 'Whether any asserted errors of law by the District Court were jurisdictional errors.']

Ratio Decidendi

The Consent Costs Order was in the usual form requiring Bookarelli to pay Katanga's costs of the proceedings as between Katanga and Bookarelli, and its language covered the whole proceedings including Katanga's successful application for freezing orders. The Vacating Order removed the earlier Interim Costs Order but did not create any inconsistency with the Consent Costs Order applying to those costs. The Consent Costs Order did not implicitly incorporate the rule of thumb or limit Bookarelli's liability to 50 per cent of common costs. The rule of thumb was not a binding rule of law and, in any event, was only a guide dependent on circumstances. Accordingly, the District Court did not...

Court Disposition

The Amended Summons was dismissed and Bookarelli was ordered to pay Katanga's costs, with written submissions to be filed on whether costs should be on an indemnity basis.

Orders

  • ['The Amended Summons filed on 8 December 2016 be dismissed.' "The applicant pay the respondent's costs of the proceedings in this Court." 'Subject to any application as to costs that may be made by the respondent, the applicant file and serve written submissions within 14 days as to whether it should be ordered to...