Martins v A & A Martins Pty Ltd [2016] FCA 953

Martins v A & A Martins Pty Ltd [2016] FCA 953

Because the orders of 3 August 2016 had not been formally entered, r 39.04 empowered the Court to vary them. The solicitor's failure to file a notice of discontinuance reflecting clause 7(d) of the deed of settlement was an accident or oversight which, if unremedied, would create an injustice by failing to give effect to the parties' clear intention that the proceedings be discontinued with no order as to costs. Order 2 should therefore be varied to provide that there be no order as to costs.

Jurisdiction
Australia
Judgment Date
12 August 2016
Procedural Posture
Interlocutory Application to Vary a Costs Order Following Discontinuance / Application Under R 39.04 of the Federal Court Rules 2011 (cth) to Vary Order 2 of the Orders Dated 3 August 2016 Before Entry
Outcome
Interlocutory application allowed; order 2 of the orders dated 3 August 2016 varied; no order as to costs of the interlocutory application.
Legal Topics
['variation of Orders' 'mistake by Legal Representative' 'discontinuance' 'costs' 'federal Court Rules 2011 (cth)']
['practice and Procedure' 'commercial and Corporations'] ['variation of Orders' 'mistake by Legal Representative' 'discontinuance' 'costs' 'federal Court Rules 2011 (cth)']

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Procedural Posture

Interlocutory Application to Vary a Costs Order Following Discontinuance / Application Under R 39.04 of the Federal Court Rules 2011 (cth) to Vary Order 2 of the Orders Dated 3 August 2016 Before Entry

Legal Issues

  1. 1 ['Whether order 2 of the orders dated 3 August 2016 should be varied so that there be no order as to costs.' "Whether a mistake by the applicant's solicitor in filing a notice of discontinuance that did not reflect the deed of settlement justified varying an order before entry under r 39.04 of the Federal Court Rules 2011 (Cth)."]

Ratio Decidendi

Because the orders of 3 August 2016 had not been formally entered, r 39.04 empowered the Court to vary them. The solicitor's failure to file a notice of discontinuance reflecting clause 7(d) of the deed of settlement was an accident or oversight which, if unremedied, would create an injustice by failing to give effect to the parties' clear intention that the proceedings be discontinued with no order as to costs. Order 2 should therefore be varied to provide that there be no order as to costs.

Court Disposition

Interlocutory application allowed; order 2 of the orders dated 3 August 2016 varied; no order as to costs of the interlocutory application.

Orders

  • ['Order 2 of the orders dated 3 August 2016 be varied to read: Pursuant to rule 26.12(7) of the Federal Court Rules 2011 (Cth) there be no order as to costs.' 'There be no order as to costs of the interlocutory application dated 5 August 2016.']