Goo v Kim (Costs) [2023] FCA 308

Goo v Kim (Costs) [2023] FCA 308

Although the respondent would have achieved a better result by accepting any of the appellant's offers, its refusal was not sufficiently unreasonable to justify indemnity costs because the Court declined security for costs on grounds including likely stifling of the appeal, a reasonably arguable discrete substantive point of law, and public interest, while the appellant's offers were primarily directed to quantum and did not adequately explain the merits or public interest issue. Costs also should not be reserved because the security for costs application was discrete, contested, wholly unsuccessful, and not sufficiently tied to final resolution of the appeal.

Jurisdiction
Australia
Judgment Date
05 April 2023
Procedural Posture
Costs Application in an Appeal Concerning an Interlocutory Application for Security for Costs / Determination of Application for Indemnity Costs or Alternative Costs Order After Dismissal of Security for Costs Application
Outcome
Application for indemnity costs dismissed; respondent ordered to pay the appellant's costs of the security for costs application on the ordinary basis; respondent's request that costs be reserved rejected.
Legal Topics
['indemnity Costs' 'security for Costs' 'unreasonable Refusal of Compromise Offers' 'reservation of Costs' 'federal Court Costs Discretion']
['costs' 'civil Procedure' 'commercial and Corporations' 'general and Personal Insolvency'] ['indemnity Costs' 'security for Costs' 'unreasonable Refusal of Compromise Offers' 'reservation of Costs' 'federal Court Costs Discretion']

Case Brief

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Procedural Posture

Costs Application in an Appeal Concerning an Interlocutory Application for Security for Costs / Determination of Application for Indemnity Costs or Alternative Costs Order After Dismissal of Security for Costs Application

Legal Issues

  1. 1 ["Whether the respondent's failure to accept the appellant's offers to provide security for costs was unreasonable so as to justify indemnity costs." "Whether the costs of the respondent's security for costs application should be reserved until final determination of the appeal." "Whether the respondent should pay the appellant's costs of the security for costs application on the ordinary basis."]

Ratio Decidendi

Although the respondent would have achieved a better result by accepting any of the appellant's offers, its refusal was not sufficiently unreasonable to justify indemnity costs because the Court declined security for costs on grounds including likely stifling of the appeal, a reasonably arguable discrete substantive point of law, and public interest, while the appellant's offers were primarily directed to quantum and did not adequately explain the merits or public interest issue. Costs also should not be reserved because the security for costs application was discrete, contested, wholly unsuccessful, and not sufficiently tied to final resolution of the appeal.

Court Disposition

Application for indemnity costs dismissed; respondent ordered to pay the appellant's costs of the security for costs application on the ordinary basis; respondent's request that costs be reserved rejected.

Orders

  • ["The respondent is to pay the appellant's costs of and incidental to the hearing on Monday, 12 December 2022 of the interlocutory application for security for costs dated 24 October 2022 on the ordinary basis, as taxed or agreed."]