FEDERAL COURT OF AUSTRALIA Wileypark Pty Ltd v AMP Limited (No 2) [2018] FCAFC 167 File numbers: VID 535 of 2018 VID 670 of 2018 VID 680 of 2018 NSD 878 of 2018 Judges: ALLSOP CJ, MIDDLETON AND BEACH JJ Date of judgment: 5 October 2018 Catchwords: PRACTICE AND PROCEDURE – costs – application to transfer – costs in the cause Cases cited: Wileypark Pty Ltd v AMP Limited [2018] FCAFC 143 Date of last submissions: 5 September 2018 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 7 Counsel for the Applicant in VID 535 of 2018: Mr WAD Edwards with Mr DJ Fahey Solicitor for the Applicant in VID 535 of 2018: Phi Finney McDonald Counsel for the Applicant in VID 670 of 2018: Mr RHM Attiwill QC with Ms RV Howe Solicitor for the Applicant in VID 670 of 2018: Slater & Gordon Limited Counsel for the Applicant in VID 680 of 2018: Mr G Donnellan Solicitor for the Applicant in VID 680 of 2018: Maurice Blackburn Counsel for the Applicant in NSD 878 of 2018: Mr JS Burnett Solicitor for the Applicant in NSD 878 of 2018: Shine Lawyers Counsel for the Respondent: Ms E Collins SC with Mr I Ahmed and Ms E Bathurst Solicitor for the Respondent: Herbert Smith Freehills Table of Corrections 8 November 2018 [5]: replaced "AMP submitted that each applicant should pay its costs in each application." with "AMP submitted that the applicants in VID670/2018 (Fernbrook) and VID680/2018 (Komlotex) pay AMP's costs of the transfer applications." ORDERS VID 535 of 2018 BETWEEN: WILEYPARK PTY LTD (ACN 006 994 289) Applicant AND: AMP LIMITED (ACN 079 354 519) Respondent VID 670 of 2018 BETWEEN: FERNBROOK (AUST) INVESTMENTS PTY LTD (ACN 068 190 296) Applicant AND: AMP LIMITED (ACN 079 354 519) Respondent VID 680 of 2018 BETWEEN: KOMLOTEX PTY LTD AS TRUSTEE FOR BREDA SINCLAIR INDUSTRIES SUPERANNUATION FUND (ACN 004 390 023) Applicant AND: AMP LIMITED (ACN 079 354 519) Respondent NSD 878 of 2018 BETWEEN: ANDREW GEORGIOU Applicant AND: AMP LIMITED (ACN 079 354 519) Respondent JUDGES: ALLSOP CJ, MIDDLETON AND BEACH JJ DATE OF ORDER: 5 OCTOBER 2018 IN EACH PROCEEDING, THE COURT ORDERS THAT: 1. The costs of the parties to the proceeding, including costs of the application to transfer the proceeding to the Supreme Court of New South Wales, be costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 On 29 August 2018, the Court made orders transferring these proceedings to the Supreme Court of New South Wales. Certain declarations were also made: see Wileypark Pty Ltd v AMP Limited [2018] FCAFC 143. 2 No application for special leave to appeal was made. Therefore, upon the expiry of 28 days after 29 August 2018 (that is, 28 September 2018) the four matters were transferred to the Supreme Court. 3 There remains the question of costs. Brief submissions were filed by the parties pursuant to leave. 4 Other than AMP, all parties submitted that the costs of the motion be costs in the cause. 5 AMP submitted that the applicants in VID670/2018 (Fernbrook) and VID680/2018 (Komlotex) pay AMP's costs of the transfer applications. 6 The appropriate order is, with respect, plainly that sought by the applicants. The issues concerning the operation of the relevant statutes were plainly such as to warrant caution in how these matters were to be disposed of. The applicants had at all times behaved responsibly and reasonably in how they approached both the Supreme Court proceeding and the proceedings in this Court. There is no basis to consider that they should be treated as losing parties because of the raising of the issues in question in matters regularly and reasonably brought in this Court. 7 In each matter, the order of the Court will be that the costs of the parties in the proceeding in this Court, including the costs of the application to transfer the proceeding, be costs in the cause. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop, Justices Middleton and Beach. Associate: Dated: 5 October 2018