McNamara v San (No. 5) [2010] FCA 960

McNamara v San (No. 5) [2010] FCA 960

There was no serious dereliction of duty or misconduct by the applicant's solicitors or counsel in commencing or maintaining the proceedings; accordingly, it is not appropriate to order that they bear costs personally. The third respondent is entitled to costs paid by the applicant on a party and party basis, but not on an indemnity basis. The motion for further costs orders is dismissed, and the third respondent is to pay the costs of Mr Kalde and Mr Kalyk in relation to the motion.

Jurisdiction
Australia
Judgment Date
23 August 2010
Procedural Posture
Notice of Motion Regarding Costs / Post Judgment Costs Determination
Outcome
Applicant ordered to pay third respondent's costs on a party and party basis; motion for further costs dismissed; third respondent ordered to pay the costs of Mr Kalde and Mr Kalyk in relation to the motion.
Legal Topics
['costs' 'indemnity Costs' 'personal Liability of Lawyers for Costs' 'standing' 'summary Dismissal']
['civil Procedure'] ['costs' 'indemnity Costs' 'personal Liability of Lawyers for Costs' 'standing' 'summary Dismissal']

Case Brief

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Procedural Posture

Notice of Motion Regarding Costs / Post Judgment Costs Determination

Legal Issues

  1. 1 ["Whether costs should be ordered against the applicant's lawyers personally" 'Whether indemnity costs should be awarded to the third respondent' 'Proper principles for awarding costs under the Federal Court Act and Rules' 'Standing of the applicant to pursue relief under Bankruptcy Act provisions']

Ratio Decidendi

There was no serious dereliction of duty or misconduct by the applicant's solicitors or counsel in commencing or maintaining the proceedings; accordingly, it is not appropriate to order that they bear costs personally. The third respondent is entitled to costs paid by the applicant on a party and party basis, but not on an indemnity basis. The motion for further costs orders is dismissed, and the third respondent is to pay the costs of Mr Kalde and Mr Kalyk in relation to the motion.

Court Disposition

Applicant ordered to pay third respondent's costs on a party and party basis; motion for further costs dismissed; third respondent ordered to pay the costs of Mr Kalde and Mr Kalyk in relation to the motion.

Orders

  • ['Applicant pay the costs of the third respondent up to and including 15 March 2010.' "Third respondent's Notice of Motion filed 24 March 2010 as amended dismissed." 'Third respondent pay the costs of the Notice of Motion (as amended) of Robert Peter Kalde and Francis Gary Kalyk.']