Watson v Kriticos (Costs of Summary Judgment Application) [2021] FCA 917

Watson v Kriticos (Costs of Summary Judgment Application) [2021] FCA 917

The summary judgment application was manifestly misconceived, involving complex factual disputes unsuitable for summary determination and supported by submissions showing a lack of grasp of basic procedure. This, and the similarly misconceived implied term argument in the strike out application, justified the granting of indemnity costs. However, a 10% reduction was warranted as the respondent succeeded in having allegations of loss and damage struck out, which was not trivial.

Parties
Applicant: Dale Cameron Watson; First Respondent: Stephen Con Kriticos; Second Respondent: Whitewater West Industries Ltd
Jurisdiction
Australia
Judgment Date
05 August 2021
Procedural Posture
Interlocutory Application (costs of Summary Judgment Application) / Costs Orders Following Determination of Summary Judgment and Strike Out Application
Outcome
Application granted in part; indemnity costs ordered with 10% reduction; lump sum assessment to be fixed by Registrar; costs payable forthwith.
Legal Topics
Costs, Indemnity Costs, Summary Judgment, Strike Out Application
Civil Procedure Costs Indemnity Costs Summary Judgment Strike Out Application

Case Brief

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Parties

Dale Cameron Watson

Applicant

Stephen Con Kriticos

First Respondent

Whitewater West Industries Ltd

Second Respondent

Procedural Posture

Interlocutory Application (costs of Summary Judgment Application) / Costs Orders Following Determination of Summary Judgment and Strike Out Application

Legal Issues

  1. 1 Whether the applicant is entitled to indemnity costs for successfully defending the summary judgment application
  2. 2 Whether costs should be assessed on a lump sum basis and payable forthwith
  3. 3 Whether Federal Court Rules 2011 (Cth) r 40.13 should be dispensed with

Ratio Decidendi

The summary judgment application was manifestly misconceived, involving complex factual disputes unsuitable for summary determination and supported by submissions showing a lack of grasp of basic procedure. This, and the similarly misconceived implied term argument in the strike out application, justified the granting of indemnity costs. However, a 10% reduction was warranted as the respondent succeeded in having allegations of loss and damage struck out, which was not trivial.

Court Disposition

Application granted in part; indemnity costs ordered with 10% reduction; lump sum assessment to be fixed by Registrar; costs payable forthwith.

Orders

  • Order 6 of the orders dated 24 March 2021 vacated and replaced by orders dispensing with Rule 40.13 of the Federal Court Rules 2011 (Cth);
  • First Respondent to pay Applicant's costs of the interlocutory application dated 7 July 2020 on an indemnity basis in accordance with Orders 1(c)-(e);