Donaldson v Natural Springs Australia Limited (No 2) [2015] FCA 1157

Donaldson v Natural Springs Australia Limited (No 2) [2015] FCA 1157

The application for a costs order against the non-party funder (Hakel) failed because the funding was a secured loan, unrelated to the outcome of the litigation; Hakel had no direct financial interest, exercised no control over the case, and was not the real party to the proceeding. The application against Mr Graer failed because witnesses are generally immune from costs orders for evidence, and there was insufficient authority or warning to justify such an order.

Parties
Plaintiff: Gordon Bruce Donaldson; First Defendant: Natural Springs Australia Limited; Second Defendant: Jurgen Christian Kurt Schlotzer; Third Defendant: Wolfgang Zink; Fourth Defendant: Peter Rose; Fifth Defendant: Prime Log Brokers Ltd; Non Party: Hakel Investments Pty Ltd; Non Party: David Graer
Jurisdiction
Australia
Judgment Date
28 October 2015
Procedural Posture
Application for Non Party Costs Order / Post Trial Costs Application Decision
Outcome
Application dismissed
Legal Topics
Costs, Non Party Costs Orders, Litigation Funding
Civil Procedure Costs Non Party Costs Orders Litigation Funding

Case Brief

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Parties

Gordon Bruce Donaldson

Plaintiff

Natural Springs Australia Limited

First Defendant

Jurgen Christian Kurt Schlotzer

Second Defendant

Wolfgang Zink

Third Defendant

Peter Rose

Fourth Defendant

Prime Log Brokers Ltd

Fifth Defendant

Hakel Investments Pty Ltd

Non Party

David Graer

Non Party

Procedural Posture

Application for Non Party Costs Order / Post Trial Costs Application Decision

Legal Issues

  1. 1 Whether a non-party costs order should be made against Hakel Investments Pty Ltd
  2. 2 Whether a non-party costs order should be made against David Graer, a witness

Ratio Decidendi

The application for a costs order against the non-party funder (Hakel) failed because the funding was a secured loan, unrelated to the outcome of the litigation; Hakel had no direct financial interest, exercised no control over the case, and was not the real party to the proceeding. The application against Mr Graer failed because witnesses are generally immune from costs orders for evidence, and there was insufficient authority or warning to justify such an order.

Court Disposition

Application dismissed

Orders

  • The defendants' application be dismissed.
  • No order as to costs.