Quinlan v A & J Brady Pty Ltd (No 2) [2007] FCA 1533

Quinlan v A & J Brady Pty Ltd (No 2) [2007] FCA 1533

Although the applicant was put on notice of a disconformity between his pleaded case and the evidence, the respondents did not establish a proper basis for departing from the usual party and party costs rule. They had not sought summary judgment or submitted there was no case to answer, had not alleged an ulterior motive, and had not established that the applicant's evidence as a whole was deliberately untruthful; the Court had found him basically honest but somewhat out of his depth.

Jurisdiction
Australia
Judgment Date
03 October 2007
Procedural Posture
Application by Respondents for Costs on Solicitor and Own Client Basis / Costs Determination After Dismissal of the Application and Written Submissions on Costs
Outcome
Respondents' application for solicitor and own client costs refused; costs ordered on a party and party basis.
Legal Topics
['solicitor and Own Client Costs' 'party and Party Costs' 'indemnity Costs' 'federal Court Costs Discretion' 'disconformity Between Pleaded Case and Evidence']
['civil Procedure' 'costs'] ['solicitor and Own Client Costs' 'party and Party Costs' 'indemnity Costs' 'federal Court Costs Discretion' 'disconformity Between Pleaded Case and Evidence']

Case Brief

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Procedural Posture

Application by Respondents for Costs on Solicitor and Own Client Basis / Costs Determination After Dismissal of the Application and Written Submissions on Costs

Legal Issues

  1. 1 ['Whether the Court should depart from the usual rule that costs be assessed on a party and party basis.' 'Whether the application had no chance of success such that solicitor and own client costs should be ordered.' "Whether the disconformity between the applicant's pleaded case and affidavit evidence justified a special costs order."]

Ratio Decidendi

Although the applicant was put on notice of a disconformity between his pleaded case and the evidence, the respondents did not establish a proper basis for departing from the usual party and party costs rule. They had not sought summary judgment or submitted there was no case to answer, had not alleged an ulterior motive, and had not established that the applicant's evidence as a whole was deliberately untruthful; the Court had found him basically honest but somewhat out of his depth.

Court Disposition

Respondents' application for solicitor and own client costs refused; costs ordered on a party and party basis.

Orders

  • ["The applicant pay the respondents' costs on a party and party basis, such costs to be taxed in default of agreement."]