Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 899

FEDERAL COURT OF AUSTRALIA

Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 899 BAYGOL PTY LTD v HUNTSMAN CHEMICAL COMPANY AUSTRALIA PTY LIMITED T/A RMAX N 1581 OF 2003 TAMBERLIN J SYDNEY 12 JULY 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1581 OF 2003

BETWEEN: BAYGOL PTY LTD

ACN 008 055 212

APPLICANT

AND: HUNTSMAN CHEMICAL COMPANY AUSTRALIA PTY LIMITED t/a RMAX

ACN 004 146 338

RESPONDENT

HUNTSMAN CHEMICAL COMPANY AUSTRALIA PTY LIMITED t/a RMAX

ACN 004 146 338

CROSS-CLAIMANT

BAYGOL PTY LTD

ACN 008 055 212

CROSS RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 12 JULY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application for costs is refused. 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 N 1581 OF 2003

BETWEEN: BAYGOL PTY LTD

ACN 008 055 212

APPLICANT

AND: HUNTSMAN CHEMICAL COMPANY AUSTRALIA PTY LIMITED t/a RMAX

ACN 004 146 338

RESPONDENT

HUNTSMAN CHEMICAL COMPANY AUSTRALIA PTY LIMITED t/a RMAX

ACN 004 146 338

CROSS-CLAIMANT

BAYGOL PTY LTD

ACN 008 055 212

CROSS RESPONDENT

JUDGE: TAMBERLIN J

DATE: 12 JULY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This judgment concerns the costs of a Notice of Motion filed by the respondent on 23 March 2004 seeking orders that this proceeding and proceeding number N 1530 of 2003 be heard together, and that evidence relating to invalidity in matter number N 1530 of 2003 be evidence in this proceeding. Orders were also sought that the applicant's discovery in proceeding N 1530 of 2003 be discovery in this proceeding, that the applicant provide inspection and discovery in this proceeding, that issues relating to damages on account of profits be determined separately from and subsequent to the determination of all other issues. Leave was sought to file and serve an interrogatory and a requirement was sought as to the time for answering that interrogatory. 2 On 26 March 2004, orders were made by consent that issues relating to damages or an account of profits be determined separately from determination of other issues, and that the respondent provide discovery in these proceedings in relation to all issues excluding quantum of damages or account of profits. Provision was made for inspection of discovered documents, leave was granted to file and serve the interrogatory, and a time for response was specified. There was also a requirement that affidavit evidence be filed by the applicant by a certain date and, as that the respondent file affidavit evidence by 18 June 2004. A further order was made that the question of the costs of the Notice of Motion be determined on the papers. 3 I have now considered the submissions of the parties concerning the question of costs in relation to this matter. 4 The applicant submits that the respondent ought to pay the costs of the Notice of Motion, having regard to the circumstances in which the Notice of Motion was filed, and on the basis that the Notice of Motion was precipitous and unnecessary. 5 The respondent's submissions substantially are to the effect that the applicant had failed to respond to reasonable requests, and that it was therefore necessary to issue the Notice of Motion, and that accordingly, the applicant should pay the costs of the Motion. 6 The Notice of Motion served the purpose of bringing the matter to a head, leading to a consent order. The parties ought to have arrived at a compromise on the Motion prior to the taking out of the Motion, but due to resistance on each side no agreement was reached. The failure to reach agreement is attributable to both parties. I consider that the competing considerations are equally balanced in relation the question of costs. 7 Having considered the submissions of both parties, in my view, the appropriate order is that there should be no order as to costs in respect of this application. 8 Therefore, I refuse the application for costs, with the consequence that each party will bear its own costs of the Motion and of this costs application.