Compaq Computer Australia Pty Ltd v Merry, Howard & Ors [1996] FCA 448

Compaq Computer Australia Pty Ltd v Merry, Howard & Ors [1996] FCA 448

The length of time already occupied by the proceeding, the further time likely before resolution, and the multiplicity of interlocutory costs orders in favour of the respondents made it just to depart from the general rule in O 62 r 3(3) and allow immediate taxation and payment of those costs. However, because interlocutory indemnity costs should be awarded only rarely and the case was not trial-ready, the costs should be taxed only on a party and party basis. The fifth respondent's strike out motion raised no issues beyond those already dealt with when leave to amend was granted, so it was dismissed with costs.

Jurisdiction
Australia
Judgment Date
03 June 1996
Procedural Posture
Federal Court Civil Proceeding / Interlocutory Motions Concerning Taxation of Costs, Indemnity Costs, and the Fifth Respondent's Strike Out Application
Outcome
Respondents permitted to tax and be paid interlocutory costs already awarded on a party and party basis; indemnity costs refused; fifth respondent's strike out motion dismissed with costs.
Legal Topics
['taxation of Interlocutory Costs' 'indemnity Costs' 'strike Out Application' 'amendment of Statement of Claim']
['civil Procedure' 'costs'] ['taxation of Interlocutory Costs' 'indemnity Costs' 'strike Out Application' 'amendment of Statement of Claim']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Federal Court Civil Proceeding / Interlocutory Motions Concerning Taxation of Costs, Indemnity Costs, and the Fifth Respondent's Strike Out Application

Legal Issues

  1. 1 ['Whether the respondents should be entitled under O 62 r 3(3) of the Federal Court Rules to tax costs awarded in interlocutory proceedings before the principal proceeding is concluded.' 'Whether any interlocutory costs awarded to the respondents should be taxed on an indemnity basis rather than a party and party basis.' 'Whether the amended statement of claim should be struck out insofar as it affects the fifth respondent.']

Ratio Decidendi

The length of time already occupied by the proceeding, the further time likely before resolution, and the multiplicity of interlocutory costs orders in favour of the respondents made it just to depart from the general rule in O 62 r 3(3) and allow immediate taxation and payment of those costs. However, because interlocutory indemnity costs should be awarded only rarely and the case was not trial-ready, the costs should be taxed only on a party and party basis. The fifth respondent's strike out motion raised no issues beyond those already dealt with when leave to amend was granted, so it was dismissed with costs.

Court Disposition

Respondents permitted to tax and be paid interlocutory costs already awarded on a party and party basis; indemnity costs refused; fifth respondent's strike out motion dismissed with costs.

Orders

  • ['The respondents are entitled to tax and be paid all costs awarded in their favour in interlocutory proceedings already determined.' 'Those costs should be taxed on a party and party basis.' "There should be no order for costs on the respondents' motions." "The fifth respondent's motion filed on 7 May 1996 will be...