Moody Kiddell & Partners Pty Ltd v Arkell [2013] FCA 1225

Moody Kiddell & Partners Pty Ltd v Arkell [2013] FCA 1225

Deliberate destruction of documents relating to discovery by the second respondent constituted an abuse of process, justifying striking out paragraph 105 of the amended defence. Applicant succeeded on the principal factual issues. The continued delinquent behaviour warranted indemnity costs orders, and special circumstances justified costs being payable forthwith.

Jurisdiction
Australia
Judgment Date
12 November 2013
Procedural Posture
Interlocutory Application / Costs and Strike Out Application at Interlocutory Stage
Outcome
Application granted in part; costs orders made
Legal Topics
['abuse of Process' 'discovery' 'costs (indemnity Costs)']
['civil Procedure'] ['abuse of Process' 'discovery' 'costs (indemnity Costs)']

Case Brief

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Procedural Posture

Interlocutory Application / Costs and Strike Out Application at Interlocutory Stage

Legal Issues

  1. 1 ['Whether paragraph 105 of the amended defence should be struck out for abuse of process' 'Whether indemnity costs should be awarded for the interlocutory application' 'Whether costs should be payable forthwith']

Ratio Decidendi

Deliberate destruction of documents relating to discovery by the second respondent constituted an abuse of process, justifying striking out paragraph 105 of the amended defence. Applicant succeeded on the principal factual issues. The continued delinquent behaviour warranted indemnity costs orders, and special circumstances justified costs being payable forthwith.

Court Disposition

Application granted in part; costs orders made

Orders

  • ["Paragraph 105 of the Second and Third Respondents' Amended Defence struck out." "Second and Third Respondents to pay Applicant's costs of and incidental to the Interlocutory Application on an indemnity basis, payable forthwith." 'Indemnity costs orders made on 4 April 2013 and 27 June 2013 are payable forthwith.']