Wilmoth Field Warne (A Firm) v Toshiba Singapore Pty Ltd [2011] FCA 987

Wilmoth Field Warne (A Firm) v Toshiba Singapore Pty Ltd [2011] FCA 987

The interlocutory application should have been dismissed with WFW paying Castel's costs once WFW accepted Toshiba's undertaking, but both WFW's pursuit of an indefinite adjournment and Castel's intimation that it would contest the WFW-Toshiba arrangement lacked merit. Castel had not clearly stated that it sought only dismissal of the interlocutory application, so WFW and Castel were each to bear their own costs of the resumed hearing. WFW remained the moving party and maintained its application for adjournment rather than dismissal, so it should pay Toshiba's costs on the ordinary basis. Indemnity costs were refused because Toshiba's 17 May 2011 offer was conditional and WFW's rejection...

Jurisdiction
Australia
Judgment Date
04 August 2011
Procedural Posture
Application for Interlocutory Relief Concerning an Asserted Equitable Lien or Solicitor's Lien Over a Judgment Debt / Costs Following Dismissal of the Applicant's Claim for Interlocutory Relief
Outcome
The applicant's claim for interlocutory relief was dismissed, and costs were ordered on the ordinary basis as specified.
Legal Topics
['interlocutory Relief' "solicitor's Lien" 'equitable Lien' 'costs Follow the Event' 'indemnity Costs' 'undertakings']
['civil Procedure' 'costs' 'equity'] ['interlocutory Relief' "solicitor's Lien" 'equitable Lien' 'costs Follow the Event' 'indemnity Costs' 'undertakings']

Case Brief

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Procedural Posture

Application for Interlocutory Relief Concerning an Asserted Equitable Lien or Solicitor's Lien Over a Judgment Debt / Costs Following Dismissal of the Applicant's Claim for Interlocutory Relief

Legal Issues

  1. 1 ['Whether the second respondent should bear its own costs of the resumed hearing.' 'Whether the first respondent should be awarded indemnity costs from 17 May 2011.' "Whether the applicant should pay the respondents' costs after dismissal of its claim for interlocutory relief."]

Ratio Decidendi

The interlocutory application should have been dismissed with WFW paying Castel's costs once WFW accepted Toshiba's undertaking, but both WFW's pursuit of an indefinite adjournment and Castel's intimation that it would contest the WFW-Toshiba arrangement lacked merit. Castel had not clearly stated that it sought only dismissal of the interlocutory application, so WFW and Castel were each to bear their own costs of the resumed hearing. WFW remained the moving party and maintained its application for adjournment rather than dismissal, so it should pay Toshiba's costs on the ordinary basis. Indemnity costs were refused because Toshiba's 17 May 2011 offer was conditional and WFW's rejection...

Court Disposition

The applicant's claim for interlocutory relief was dismissed, and costs were ordered on the ordinary basis as specified.

Orders

  • ["The applicant's claim for interlocutory relief made by its Application of 13 May 2011 be dismissed." "The applicant pay the first respondent's costs of the applicant's claim for interlocutory relief made by its Application of 13 May 2011." "Save for the costs of and incidental to today's hearing, the applicant pay...