Hancock v American Express Australia Ltd [2010] FCA 333

Hancock v American Express Australia Ltd [2010] FCA 333

Because the insolvency issue had from the outset been intended to be determined as a preliminary and separate issue, and Amex maintained that insolvency was in issue from about 22 April 2009 until notifying the applicant on 5 March 2010 that it no longer put insolvency in issue, causing delay and unnecessary costs, the applicant was entitled to costs thrown away or unnecessarily incurred by Amex's conduct on that issue from 22 April 2009 to 4 March 2010, payable forthwith.

Jurisdiction
Australia
Judgment Date
07 April 2010
Procedural Posture
Federal Court Proceeding Concerning an Insolvency Issue Under S 588 FC of the Corporations Act 2001 (cth) / Costs Ruling and Directions After Declaration of Insolvency as a Preliminary and Separate Issue
Outcome
The first respondent was ordered to pay the applicant's thrown away or unnecessarily incurred costs on the insolvency issue, and case management directions were made.
Legal Topics
['relation Back Period' 'preliminary and Separate Issue' 'thrown Away or Unnecessarily Incurred Costs' 'costs in the Cause' 'discovery Directions']
['corporations Law' 'insolvency' 'civil Procedure' 'costs'] ['relation Back Period' 'preliminary and Separate Issue' 'thrown Away or Unnecessarily Incurred Costs' 'costs in the Cause' 'discovery Directions']

Case Brief

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Procedural Posture

Federal Court Proceeding Concerning an Insolvency Issue Under S 588 FC of the Corporations Act 2001 (cth) / Costs Ruling and Directions After Declaration of Insolvency as a Preliminary and Separate Issue

Legal Issues

  1. 1 ["What costs order should be made following the Court's declaration that Augment was insolvent throughout the relation back period from 23 September 2005 to 23 March 2006." 'Whether the applicant should receive costs thrown away or unnecessarily incurred because Amex maintained and then abandoned its dispute about insolvency shortly before the hearing of the preliminary and separate issue, or whether costs should be costs in the cause.']

Ratio Decidendi

Because the insolvency issue had from the outset been intended to be determined as a preliminary and separate issue, and Amex maintained that insolvency was in issue from about 22 April 2009 until notifying the applicant on 5 March 2010 that it no longer put insolvency in issue, causing delay and unnecessary costs, the applicant was entitled to costs thrown away or unnecessarily incurred by Amex's conduct on that issue from 22 April 2009 to 4 March 2010, payable forthwith.

Court Disposition

The first respondent was ordered to pay the applicant's thrown away or unnecessarily incurred costs on the insolvency issue, and case management directions were made.

Orders

  • ["The first respondent forthwith pay the applicant's costs of the insolvency issue thrown away or unnecessarily incurred by the first respondent's conduct in respect of that issue on and from 22 April 2009 up to and including 4 March 2010." 'The applicant file and serve Points of Claim by 21 April 2010.' 'The...