Lukey v Corporate Investment Australia Funds Management Ltd [2005] FCA 1074

The Court held that none of the matters relied on by Hartford—either individually or cumulatively—amounted to the special or unusual circumstances necessary to warrant an award of indemnity costs. The ordinary principle that costs follow the event on a party and party basis was not displaced. The motion was accordingly dismissed and Hartford was ordered to pay Cardinal's costs of the motion.

Parties: Applicant: Samantha Jayne Lukey; First Respondent: Corporate Investment Australia Funds Management Pty Limited (ACN 059 438 514); Second Respondent: Tracknet Australia Pty Limited (ACN 079 730 466); Third Respondent / Cross Claimant: Cardinal Financial Securities Limited (in liquidation) (ACN 058 650 212); Fourth Respondent / First Cross Respondent to Fifth Cross Claim: John Charles Kerin; Fifth Respondent: Garry Martin White; First Cross Respondent to Second Cross Claim: Finance and Planning Insurance & Superannuation Consultants Pty Limited (ABN 45 080 753 797); Second Cross Respondent to Second Cross Claim: Sherin Ibrahim; Third Cross Respondent to Second Cross Claim: The Hartford Group Pty Limited (ACN 084 348 167); Fourth Cross Respondent to Second Cross Claim: Anthony Arthur Cunningham; Fifth Cross Respondent to Second Cross Claim: Glen-John Lacelles Smith
Jurisdiction: Australia
Judgment Date: 27 July 2005
Procedural Posture: Civil Proceeding (class Action, Cross Claims for Contribution/indemnity, Costs Application) / Application for Indemnity Costs Following Dismissal of Cross Claim, Post Judgment Motion
Outcome: Motion for indemnity costs dismissed; Hartford ordered to pay Cardinal's costs of the motion.
Legal Topics: Class Actions, Cross Claims, Order for Costs, Indemnity Costs, Party/party Costs

Civil Procedure Costs Class Actions Cross Claims Order for Costs Indemnity Costs Party/party Costs

Case Brief

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Parties

Samantha Jayne Lukey

Applicant

Corporate Investment Australia Funds Management Pty Limited (ACN 059 438 514)

First Respondent

Tracknet Australia Pty Limited (ACN 079 730 466)

Second Respondent

Cardinal Financial Securities Limited (in liquidation) (ACN 058 650 212)

Third Respondent / Cross Claimant

John Charles Kerin

Fourth Respondent / First Cross Respondent to Fifth Cross Claim

Garry Martin White

Fifth Respondent

Finance and Planning Insurance & Superannuation Consultants Pty Limited (ABN 45 080 753 797)

First Cross Respondent to Second Cross Claim

Sherin Ibrahim

Second Cross Respondent to Second Cross Claim

The Hartford Group Pty Limited (ACN 084 348 167)

Third Cross Respondent to Second Cross Claim

Anthony Arthur Cunningham

Fourth Cross Respondent to Second Cross Claim

Glen-John Lacelles Smith

Fifth Cross Respondent to Second Cross Claim

Procedural Posture

Civil Proceeding (class Action, Cross Claims for Contribution/indemnity, Costs Application) / Application for Indemnity Costs Following Dismissal of Cross Claim, Post Judgment Motion

Legal Issues

1 Whether special or unusual circumstances justify an order for indemnity costs instead of party/party costs following dismissal of a cross-claim

Ratio Decidendi

Court Disposition

Motion for indemnity costs dismissed; Hartford ordered to pay Cardinal's costs of the motion.

Orders

The notice of motion be dismissed.
The third cross-respondent (Hartford) pay the cross-claimant's (Cardinal's) costs of the notice of motion.