Dye v Commonwealth Securities Limited (No 2) [2012] FCA 407

Dye v Commonwealth Securities Limited (No 2) [2012] FCA 407

The applicant's proceedings were based on falsehood and were without legal substance, so the respondents were entitled to indemnity costs for the whole of both proceedings. Because taxation would impose substantial further costs and the applicant had represented that she had no significant assets, and because the respondents' lump sum proposal discounted their actual costs, it was appropriate to make a lump sum costs order of $5,850,000 while leaving Supreme Court of New South Wales and Full Court costs orders unaffected and revoking previous first instance Federal Court costs orders.

Jurisdiction
Australia
Judgment Date
20 April 2012
Procedural Posture
Costs Application / Application for Indemnity Costs and Lump Sum Costs Order After Dismissal of Both Proceedings; Heard on the Papers
Outcome
Respondents' application for indemnity costs and a lump sum costs order granted; applicant ordered to pay respondents' costs in both proceedings assessed overall at $5,850,000.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'calderbank Letters' 'lump Sum Costs Order' 'taxation of Costs' 'impecunious Party']
['civil Procedure' 'costs'] ['indemnity Costs' 'offer of Compromise' 'calderbank Letters' 'lump Sum Costs Order' 'taxation of Costs' 'impecunious Party']

Case Brief

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Procedural Posture

Costs Application / Application for Indemnity Costs and Lump Sum Costs Order After Dismissal of Both Proceedings; Heard on the Papers

Legal Issues

  1. 1 ['Whether the respondents should receive indemnity costs for the whole of both proceedings because the proceedings were unjustified and should not have been commenced.' 'Whether an offer of compromise and Calderbank letters provided alternative bases for indemnity costs from specified dates.' 'Whether costs should be assessed as a lump sum rather than taxed.' 'Whether previous first instance costs orders in the Federal Court should be revoked while leaving Supreme Court of New South Wales and Full Court costs orders undisturbed.']

Ratio Decidendi

The applicant's proceedings were based on falsehood and were without legal substance, so the respondents were entitled to indemnity costs for the whole of both proceedings. Because taxation would impose substantial further costs and the applicant had represented that she had no significant assets, and because the respondents' lump sum proposal discounted their actual costs, it was appropriate to make a lump sum costs order of $5,850,000 while leaving Supreme Court of New South Wales and Full Court costs orders unaffected and revoking previous first instance Federal Court costs orders.

Court Disposition

Respondents' application for indemnity costs and a lump sum costs order granted; applicant ordered to pay respondents' costs in both proceedings assessed overall at $5,850,000.

Orders

  • ['Costs ordered by the Supreme Court of New South Wales are not affected by these orders.' 'Costs ordered by the Full Court of this Court are not affected by these orders.' 'Previous costs orders made at first instance in either of the proceedings in this Court are revoked.' "The applicant is to pay the respondents'...