Nichol v Discovery Africa Limited (No 2) [2017] FCAFC 39

FEDERAL COURT OF AUSTRALIA

Nichol v Discovery Africa Limited (No 2) [2017] FCAFC 39 Appeal from: Application for leave to appeal: Discovery Africa Ltd v Nichol [2015] FCA 1497

File numbers: WAD 40 of 2016

Judges: GREENWOOD, MCKERRACHER AND MOSHINSKY JJ

Date of judgment: 3 March 2017

Catchwords: COSTS – whether costs should follow the event – whether respondent should be disentitled from an award of costs – whether costs recoverable should be reduced - where appeal succeeded on ground not obvious on the papers – where there were several unsuccessful grounds of appeal – costs recoverable reduced

Cases cited: Nichol v Discovery Africa Limited [2016] FCAFC 182 Snedden v Republic of Croatia (No 2) [2009] FCAFC 132 Yanner v Eaton (1999) 201 CLR 351

Date of hearing: Determined on the papers

Date of last submissions: 20 January 2017

Registry: Western Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Category: Catchwords

Number of paragraphs: 19

Counsel for the Applicant: Mr P van der Zanden with Mr N Kalmund

Solicitor for the Applicant: Hotchkin Hanly Lawyers

Counsel for the Respondent: Mr ML Bennett

Solicitor for the Respondent: Bennett & Co

ORDERS WAD 40 of 2016

BETWEEN: KEVIN WILLIAM NICHOL Applicant AND: DISCOVERY AFRICA LIMITED (ACN 147 324 847) Respondent

JUDGES: GREENWOOD, MCKERRACHER AND MOSHINSKY JJ DATE OF ORDER: 3 MARCH 2017

THE COURT ORDERS THAT:

1. In lieu of order 3 of the orders of Justice Gilmour in WAD 87 of 2014, given on 23 December 2015, there be orders that: The costs of the summary judgment application be in the cause. 2. The respondent do pay 50% of the costs of the applicant on the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.