Brookfield v Yevad Products Pty Ltd [2004] FCA 1717

FEDERAL COURT OF AUSTRALIA

Brookfield v Yevad Products Pty Ltd [2004] FCA 1717

PRACTICE AND PROCEDURE – orders – costs orders – where judgment set aside – costs sought to punish respondent – function of award of costs – whether applicant entitled to costs thrown away at first trial – whether a lump sum should be awarded – whether subsequently unrepresented litigant entitled to costs.

Oshlack v Richmond River Council (1998) 193 CLR 72 applied Latoudis v Casey (1990) 170 CLR 534 applied Cachia v Hanes (1994) 179 CLR 403 applied IAN WALTER BROOKFIELD AND SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQ) v YEVAD PRODUCTS PTY LTD (FORMERLY KNOWN AS DAVEY PRODUCTS PTY LTD) (ACN 004 813 192) SAD 112 of 1993 LANDER J ADELAIDE 23 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 112 OF 1993

BETWEEN: IAN WALTER BROOKFIELD

FIRST APPLICANT

SEPTIC PRODUCTS AUSTRALIA PTY LTD

SECOND APPLICANT

AND: YEVAD PRODUCTS PTY LTD

RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 23 DECEMBER 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Paragraph 1 of the orders made by Branson J in the within action on 8 February 1996 be set aside. 2. Paragraph 2 of the orders made by Branson J in the within action on 8 February 1996 be set aside. 3. The order made by Branson J on 19 December 1997 be set aside. 4. The respondent pay the applicants' costs thrown away by reason of the respondent's failure to make proper and appropriate discovery. 5. There will be no order for costs of the notice of motion. 6. The application to join McPherson's Limited is dismissed. 7. Insofar as any party requires leave to appeal from paragraphs 5 and 6 of these orders, leave is granted. 8. Extend the time for any party to appeal from these orders until 31 January 2005. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.