Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 203

Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 203

Because Dresna succeeded on all appeal issues except the issue affecting the first and second respondents, it was entitled to its appeal costs from the third, fourth and fifth respondents but had to pay the first and second respondents' appeal costs. The costs order below was not revisited because there was no basis to interfere, including given the history of repeated amendment applications. Dresna also had to pay costs thrown away by the further amendments allowed on appeal. A certificate under s 6 was refused because the applicable rule on leave to amend was clear and the issue was only whether there was an arguable case.

Jurisdiction
Australia
Judgment Date
11 August 2004
Procedural Posture
Appeal From a Single Judge of the Federal Court of Australia Concerning Costs After an Application for Leave to Amend / Reasons for Judgment on Costs
Outcome
Costs orders made; application by the third and fourth respondents for a certificate for costs under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) refused.
Legal Topics
['costs of Appeal' 'costs of Amendment Application' 'costs Thrown Away by Amendments' 'certificate for Costs Under Federal Proceedings (costs) Act 1981 (cth) S 6' 'leave to Amend Pleadings']
['civil Procedure' 'costs'] ['costs of Appeal' 'costs of Amendment Application' 'costs Thrown Away by Amendments' 'certificate for Costs Under Federal Proceedings (costs) Act 1981 (cth) S 6' 'leave to Amend Pleadings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From a Single Judge of the Federal Court of Australia Concerning Costs After an Application for Leave to Amend / Reasons for Judgment on Costs

Legal Issues

  1. 1 ['Whether Dresna should receive its costs of the appeal against the third, fourth and fifth respondents given its success on appeal.' "Whether Dresna should pay the first and second respondents' costs of the appeal because it failed on the issue affecting them." 'Whether the costs order made below should be revisited.' 'Whether the third and fourth respondents should receive a certificate for costs under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).']

Ratio Decidendi

Because Dresna succeeded on all appeal issues except the issue affecting the first and second respondents, it was entitled to its appeal costs from the third, fourth and fifth respondents but had to pay the first and second respondents' appeal costs. The costs order below was not revisited because there was no basis to interfere, including given the history of repeated amendment applications. Dresna also had to pay costs thrown away by the further amendments allowed on appeal. A certificate under s 6 was refused because the applicable rule on leave to amend was clear and the issue was only whether there was an arguable case.

Court Disposition

Costs orders made; application by the third and fourth respondents for a certificate for costs under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) refused.

Orders

  • ["The third, fourth and fifth respondents pay the appellant's costs of the appeal." "The appellant pay the first and second respondents' costs of the appeal." 'The appellant pay the costs thrown away by the amendments allowed on appeal.']