Waverley Council v Refkin Pty Limited [2001] FCA 1469

FEDERAL COURT OF AUSTRALIA

Waverley Council v Refkin Pty Limited [2001] FCA 1469 PRACTICE AND PROCEDURE – costs – whether applicant should be ordered to pay costs on indemnity basis – where applicant discontinued present proceeding – where discontinuance meant applicant already liable to pay costs on party and party basis – whether fact that applicant without explanation delayed serving on respondents application and statement of claim supports ordering indemnity costs – whether fact that applicant made allegation of fraud against respondents but in doing so did not make allegation which was irrelevant or which applicant knew to be false supports ordering indemnity costs – whether fact that applicant instituted three proceedings in three courts (including present proceeding) arising out of one set of facts supports ordering indemnity costs – where proceedings involved different parties, claims and relief – where applicant did not bring all proceedings to end by its own action – whether fact that courts in earlier proceedings ordered applicant to pay indemnity costs supports ordering indemnity costs in present proceeding – whether omission of respondents to give applicant timely notice that respondents intended to seek indemnity costs in present proceeding a factor against ordering indemnity costs – where applicant could reasonably have inferred that respondents did not intend to seek indemnity costs because respondents had consented to earlier orders for costs in present proceeding on party and party basis. Trade Practices Act 1974 (Cth) ss 52(1), 75B(1) Federal Court Rules O 22 rr 2(1)(b), 3(1), O 62 rr 12, 19, 26 Supreme Court Act 1970 (NSW) s 68 Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning (2000) 107 LGERA 363 referred to Waverley Council v Refkin Pty Ltd [2000] NSWSC 242 referred to Waverley Council v Refkin Pty Ltd [2000] NSWLEC 124 referred to Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 referred to Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2001] FCA 1269 referred to Matthew 26:52 WAVERLEY COUNCIL v REFKIN PTY LIMITED ACN 067 408 824 & ANOR N 867 of 2000 KATZ J 19 OCTOBER 2001 SYDNEY