Young v Wyllie (No 2) [2010] FCA 616

Young v Wyllie (No 2) [2010] FCA 616

The applicant's unsuccessful and misconceived application for summary judgment, prosecuted in a manner causing unnecessary delay and cost, justifies an order for the respondents' costs of the application to be paid forthwith on a party/party basis. No indemnity costs are warranted as the applicant's conduct lacked sufficiently special features. No cost capping is appropriate, as the circumstances do not meet the criteria for such an order.

Parties
Applicant: Gary Young; First Respondent: Gregory Wyllie; Second Respondent: Video Sports Pty Ltd; Third Respondent: EX DVD Pty Ltd (in liquidation) ACN 094 555 674; Fourth Respondent: Jim Zavos; Fifth Respondent: Pitstop Bookshop Pty Ltd; Sixth Respondent: Barbara Elizabeth Lyster; Seventh Respondent: Atlantic Video; Eighth Respondent: Chaos Entertainment Pty Ltd; Ninth Respondent: Robert Appel; Tenth Respondent: Stomp Pty Ltd; Eleventh Respondent: Andrew Jorgensen; Twelfth Respondent: Sanity Music Stores Pty Ltd; Fourteenth Respondent: Greg Milne; Fifteenth Respondent: Darren Robinson trading as Movie Search Dot Com
Jurisdiction
Australia
Judgment Date
17 June 2010
Procedural Posture
Interlocutory Application (costs Following Unsuccessful Summary Judgment Motion) / Post Interlocutory Determination (costs After Summary Judgment Dismissed)
Outcome
Application for summary judgment dismissed; applicant ordered to pay respondents' costs (other than third, fourth, and fifteenth respondents) on a party/party basis to be taxed and payable forthwith, subject to leave to appeal.
Legal Topics
Costs, Summary Judgment, Federal Court Rules, Indemnity Costs, Party and Party Costs, Cost Capping
Civil Procedure Costs Summary Judgment Federal Court Rules Indemnity Costs Party and Party Costs Cost Capping

Case Brief

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Parties

Gary Young

Applicant

Gregory Wyllie

First Respondent

Video Sports Pty Ltd

Second Respondent

EX DVD Pty Ltd (in liquidation) ACN 094 555 674

Third Respondent

Jim Zavos

Fourth Respondent

Pitstop Bookshop Pty Ltd

Fifth Respondent

Barbara Elizabeth Lyster

Sixth Respondent

Atlantic Video

Seventh Respondent

Chaos Entertainment Pty Ltd

Eighth Respondent

Robert Appel

Ninth Respondent

Stomp Pty Ltd

Tenth Respondent

Andrew Jorgensen

Eleventh Respondent

Sanity Music Stores Pty Ltd

Twelfth Respondent

Greg Milne

Fourteenth Respondent

Darren Robinson trading as Movie Search Dot Com

Fifteenth Respondent

Procedural Posture

Interlocutory Application (costs Following Unsuccessful Summary Judgment Motion) / Post Interlocutory Determination (costs After Summary Judgment Dismissed)

Legal Issues

  1. 1 What is the appropriate order for costs following the applicant's unsuccessful summary judgment application?
  2. 2 Whether costs should be awarded on an indemnity or party/party basis and whether they should be payable forthwith.
  3. 3 Whether a costs capping order should be made.

Ratio Decidendi

The applicant's unsuccessful and misconceived application for summary judgment, prosecuted in a manner causing unnecessary delay and cost, justifies an order for the respondents' costs of the application to be paid forthwith on a party/party basis. No indemnity costs are warranted as the applicant's conduct lacked sufficiently special features. No cost capping is appropriate, as the circumstances do not meet the criteria for such an order.

Court Disposition

Application for summary judgment dismissed; applicant ordered to pay respondents' costs (other than third, fourth, and fifteenth respondents) on a party/party basis to be taxed and payable forthwith, subject to leave to appeal.

Orders

  • The applicant's notice of motion of 26 August 2009 for summary judgment be dismissed.
  • The applicant to pay the respondents' costs (other than the third, fourth and fifteenth respondents) of the notice of motion on a party and party basis.