Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed (No 5) [2013] FCA 1382

Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed (No 5) [2013] FCA 1382

The applicant is liable only for the party and party costs of the third and fourth respondents exclusively attributable to the claims against them for accessorial liability, and only to the extent that such costs have not already been discharged by corporate respondents. Indemnity costs were not justified because...

Source-derived case information.

Parties
Applicant: Tamawood Limited (ACN 010 954 499); First Respondent: Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (ACN 122 935 497); Second Respondent: Bloomer Constructions (Qld) Pty Ltd (ACN 071 344 100); Third Respondent: Peter Frederick O'Mara; Fourth Respondent: David Gavin Johnson; Fifth Respondent: Wayne Norman Bloomer; Sixth Respondent: Habitare Pty Ltd (ACN 098 209 495); Seventh Respondent: Eight March Pty Ltd (ACN 099 315 787) (As Trustee of the Eight March Discretionary Trust); Eighth Respondent: First Priority Developments Pty Ltd (ACN 098 329 465) (As Trustee of the First Priority Discretionary Trust); Ninth Respondent: Mondo Architects Pty Ltd (ACN 085 992 990)
Jurisdiction
Australia
Judgment Date
17 December 2013
Procedural Posture
Civil / Costs Determination Following Liability Findings; Application Dismissed Against Third and Fourth Respondents
Outcome
Application dismissed against third and fourth respondents; costs payable by applicant as limited by the orders.
Legal Topics
Costs, Copyright Infringement, Accessorial Liability, Party and Party Costs, Indemnity Costs
Intellectual Property Law Civil Procedure Costs Copyright Infringement Accessorial Liability Party and Party Costs Indemnity Costs

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Parties

Tamawood Limited (ACN 010 954 499)

Applicant

Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (ACN 122 935 497)

First Respondent

Bloomer Constructions (Qld) Pty Ltd (ACN 071 344 100)

Second Respondent

Peter Frederick O'Mara

Third Respondent

David Gavin Johnson

Fourth Respondent

Wayne Norman Bloomer

Fifth Respondent

Habitare Pty Ltd (ACN 098 209 495)

Sixth Respondent

Eight March Pty Ltd (ACN 099 315 787) (As Trustee of the Eight March Discretionary Trust)

Seventh Respondent

First Priority Developments Pty Ltd (ACN 098 329 465) (As Trustee of the First Priority Discretionary Trust)

Eighth Respondent

Mondo Architects Pty Ltd (ACN 085 992 990)

Ninth Respondent

Procedural Posture

Civil / Costs Determination Following Liability Findings; Application Dismissed Against Third and Fourth Respondents

Legal Issues

  1. 1 Whether costs of individual respondents (third and fourth) should be paid by the applicant on party and party or indemnity basis
  2. 2 Whether applicant is only liable for costs exclusively attributable to claim for accessorial liability against individual respondents
  3. 3 Whether apportionment of costs is appropriate due to common legal representation with corporate respondents

Ratio Decidendi

The applicant is liable only for the party and party costs of the third and fourth respondents exclusively attributable to the claims against them for accessorial liability, and only to the extent that such costs have not already been discharged by corporate respondents. Indemnity costs were not justified because the case against the third and fourth respondents was not hopeless or made with relevant delinquency.

Court Disposition

Application dismissed against third and fourth respondents; costs payable by applicant as limited by the orders.

Orders

  • The application is dismissed as against the third and fourth respondents.
  • The applicant to pay the third and fourth respondents' costs exclusively attributable to the claim for accessorial liability, assessed on a party and party basis, and only to the extent those respondents have incurred a liability to pay their legal advisors for legal services not already discharged by the first,...