Australian Consolidated Investments Ltd & Anor v England, R.A.F. [1995] FCA 100

CATCHWORDS

COSTS - costs of application that proceedings be transferred to State Supreme Court - whether costs should be taxable immediately

Federal Court Rules, O 63r(3) No. NG 3537 of 1994 AUSTRALIAN CONSOLIDATED INVESTMENTS LIMITED & anor v RICHARD ANTHONY FOUNTAYNE ENGLAND

MOORE J SYDNEY 10 MARCH 1995

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 3537 of 1994 ) GENERAL DIVISION ) BETWEEN: AUSTRALIAN CONSOLIDATED INVESTMENTS LIMITED First Applicant MANCHAR HOLDINGS PTY LTD Second Applicant

AND: RICHARD ANTHONY FOUNTAYNE ENGLAND Respondent JUDGE: Moore J PLACE: Sydney DATE: 10 March 1995 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The applicants pay the respondent's costs of the interlocutory application to transfer the proceedings to the Supreme Court of South Australia. 2. The costs be taxable when the proceedings have been heard and determined by that Court. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 3537 of 1994 ) GENERAL DIVISION ) BETWEEN: AUSTRALIAN CONSOLIDATED INVESTMENTS LIMITED First Applicant MANCHAR HOLDINGS PTY LTD Second Applicant AND: RICHARD ANTHONY FOUNTAYNE ENGLAND Respondent JUDGE: Moore J PLACE: Sydney DATE: 10 March 1995 REASONS FOR JUDGMENT In this matter I reserved on the question of costs and gave leave to the parties to make written submissions. The liquidator seeks the costs of the interlocutory application and that the costs be taxable immediately. The disputing companies seek an order that the costs of the interlocutory application be costs in the principal application or, if a costs order is made against them in the interlocutory application, the costs be taxable at the conclusion of the principal application. While the disputing companies point out that in my judgment I spoke of the relevant considerations "being comparatively evenly balanced", they nonetheless failed in resisting the application for transfer. I see no reason for departing from the general rule that costs should ordinarily follow the event. As to when the costs should be taxed, I consider that should occur when the principal application has been determined. The policy evident in O62r3(3) of the Rules of the Federal Court is that a successful party in an interlocutory application must ordinarily await the determination of the matter generally before costs can be taxed. In this Court either the proceedings concerning the principal application have, in a formal sense, concluded within the meaning of O62r3(3) as the principal application has been transferred to another court, or the principal application has not yet been concluded but awaits determination by another court. Which of these is the correct approach was not addressed in the written submissions and, in any event, is not presently material. That is so because the policy of O63r3(3) is clear. The taxation of costs in interlocutory applications should ordinarily await the final disposition of the matter in which the interlocutory application was made. If, on strict analysis, the proceedings in this Court concluded by the making of the order transferring the principal application, the controversy that gave rise to them has not yet been determined. Consistent with the policy of O63r3(3), the taxation of the costs of the interlocutory application should await the principal application's determination by the Supreme Court of South Australia. Had the liquidator failed in the interlocutory application, O63r3(3) would have pointed to this result in the Federal Court to his benefit had he been ordered to pay the costs of the interlocutory application. The liquidator submits that I should exercise the discretion that plainly arises in the sub-rule, to permit the costs to be taxed immediately. He does so because the funds available to him to complete the winding up are limited. If it had been demonstrated that the immediate recovery of the costs would have a material difference, at this point, in his capacity to complete the liquidation, then that may have provided a basis for exercising the discretion in O63r3(3) in his favour. However this was not put by the liquidator. I propose to order that the disputing companies pay the liquidator the costs of the interlocutory application and that the costs be taxable when the principal application has been heard and determined by the Supreme Court of South Australia.