Montresor v Astra Prestige Vehicle Service and Detailing Pty Ltd and Anor (No 2) [2005] NSWIRComm 343

Montresor v Astra Prestige Vehicle Service and Detailing Pty Ltd and Anor (No 2) [2005] NSWIRComm 343

The respondents' non-attendance and representation at the conciliation conference did not justify a costs order because the second respondent was contactable and was contacted for further instructions, and the failure of negotiations was not a basis for costs. However, the respondents' failure to file a Reply in the required form by the time ordered caused unnecessary expense to the applicant, and the interests of justice required the respondents to pay the costs occasioned by that default. The applicant could not recover costs of the contempt motion because resort to contempt was a heavy-handed response when relisting the default before the Court would have been simpler and less costly.

Jurisdiction
Australia
Judgment Date
23 September 2005
Procedural Posture
Application Under Section 106 of the Industrial Relations Act 1996; Application for Costs / Interlocutory Judgment (no 2)
Outcome
Costs awarded to the applicant on a limited basis against the respondents jointly and severally.
Legal Topics
['application for Costs Against Defaulting Parties' 'failure to File Reply to Summons' 'conciliation Conference Attendance and Authority to Negotiate' 'contempt Motion Costs']
['industrial Relations' 'costs' 'unfair Contract'] ['application for Costs Against Defaulting Parties' 'failure to File Reply to Summons' 'conciliation Conference Attendance and Authority to Negotiate' 'contempt Motion Costs']

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Procedural Posture

Application Under Section 106 of the Industrial Relations Act 1996; Application for Costs / Interlocutory Judgment (no 2)

Legal Issues

  1. 1 ["Whether the respondents should pay the applicant's costs at this stage because they failed to file a Reply in accordance with the Court's orders made on 31 March 2005." 'Whether costs should be awarded because the second respondent did not attend the conciliation conference and the applicant alleged the representatives present were not satisfactorily instructed or authorised.' 'Whether the applicant should recover costs associated with preparing and filing the motion and notice of charge of contempt filed on 19 May 2005.']

Ratio Decidendi

The respondents' non-attendance and representation at the conciliation conference did not justify a costs order because the second respondent was contactable and was contacted for further instructions, and the failure of negotiations was not a basis for costs. However, the respondents' failure to file a Reply in the required form by the time ordered caused unnecessary expense to the applicant, and the interests of justice required the respondents to pay the costs occasioned by that default. The applicant could not recover costs of the contempt motion because resort to contempt was a heavy-handed response when relisting the default before the Court would have been simpler and less costly.

Court Disposition

Costs awarded to the applicant on a limited basis against the respondents jointly and severally.

Orders

  • ["The respondents, jointly and severally, shall pay the applicant's costs occasioned by the respondents' failure to file a Reply in accordance with the Court's orders made on 31 March 2005." 'Such costs shall not include costs associated with the preparation of the motion, affidavit in support and notice of charge...