Brookfield v Yevad Products Pty Ltd [2005] FCA 19

FEDERAL COURT OF AUSTRALIA

Brookfield v Yevad Products Pty Ltd [2005] FCA 19

PRACTICE AND PROCEDURE – orders – costs orders – costs sought on an indemnity basis – where applicants filed various notices of motion – where orders sought unlikely to be made. 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 21 JANUARY 2005 ADELAIDE

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: 21 JANUARY 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The applicants pay the respondent's costs of and incidental to the notice of motion filed on 14 December 2004 on an indemnity basis. 2. No order as to costs of the notices of motion of 20 October 2004 and 8 December 2004, which includes the hearing on 18 January 2005. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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: 21 JANUARY 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application by the respondent that the applicants pay the respondent's costs in relation to three notices of motion dated 20 October 2004, 8 December 2004 and 14 December 2004 issued by the applicants. The respondent seeks costs on an indemnity basis. 2 On 9 September 2004 I published reasons in which I indicated that I would set aside orders made by the trial judge in this matter dismissing the applicants' application and ordering the applicants to pay the respondent's costs. I said at [420]: ' In my opinion, the interests of justice will be served by setting aside the order made by Branson J on 8 February 1996 dismissing the applicants' application and ordering the applicants to pay the respondent's costs. There should also be an order setting aside the order made by Branson J varying the order for costs made on 8 February 1996 and providing that the first applicant pay the respondent's costs specified in the sum of $380,493.82.' 3 I invited the applicants (who were unrepresented) to bring in short minutes to reflect and to give effect to the reasons published that day. 4 On 21 September 2004 the applicants provided the respondent with 'Proposed Minutes of Consent Orders' in which they sought the following orders: '1. The orders made by Branson J on 8 February 1996 and 8 May 1998 be set aside. 2. The orders made by the Full Court on 12 September 1996 be set aside. 3. All other orders made for costs in favour of the respondent be vacated. 4. The respondents and its solicitors Piper Alderman and Thomson Playford pay the applicants' costs of this proceeding including all reserved costs on an indemnity basis. 5. The respondent and its solicitors pay interest on the costs so fixed at the rate prescribed from time to time pursuant to Order 35 Rule 8 of the Federal Court Rules. 6. The total amount of costs payable pursuant to order 4 is fixed at $2,230,000.00. 7. Otherwise this proceeding be transferred to the Melbourne Registry of the Federal Court and be listed for Directions.' 5 On 28 September 2004 the applicants provided the respondent with further 'Proposed Minutes of Consent Orders' in which they sought the following orders: '1. The judgement of Justice Branson in action number SG1121 [sic] of 1993 dated 8 February 1996 be set aside. 2. The order of Justice Branson in action number SG112 of 1993 dated 19 December 1997 be set aside. 3. The applicants issue any notice of motion seeking further orders on or before 1 October 2004. 4. The applicants file and serve any affidavit material on which they seek to rely on or before 12 October 2004. 5. The respondent file and serve any affidavit material on which it seeks to rely on or before 26 October 2004. 6. The matter be listed for hearing at a date no earlier than 26 October 2004. 7. Costs reserved.' 6 On 20 October 2004 the applicants, who were then represented by Slater and Gordon, filed a notice of motion returnable on 26 October 2004 seeking the following orders: '1. The judgement of Justice Branson in action number SG1121 [sic] of 1993 dated 8 February 1996 be set aside. 2. The order of Justice Branson in action number SG112 of 1993 dated 19 December 1997 be set aside. 3. All other orders made for costs in favour of the respondent in the proceeding be vacated. 4. The respondent or its solicitors Piper Alderman and / or Thomson Playford pay the applicants' costs of this proceeding including all reserved costs on an indemnity basis. 5. Such costs as are awarded be fixed by the Court on a lump sum basis. 6. In the alternative such costs be taxed in default of agreement. 7. The respondent and its solicitors Thomson Playford pay the expenses incurred by the applicants arising out of application to set aside the judgement of Branson J dated 8 February 1996 and the orders arising therefrom. 8. The respondent and its solicitors pay interest on the costs so fixed at the rate prescribed from time to time pursuant to Order 35 Rule 8 of the Federal Court Rules. 9. This proceeding be transferred to the Melbourne Registry of the Federal Court and be listed for trial Directions. 10. The respondents pay the cost of this application.' 7 An affidavit sworn by Mark Johnathan Walter, a partner in the firm of Slater and Gordon, was filed with that notice of motion. Mr Walter exhibited communications between his firm and the respondent's solicitors in relation to the orders to be made. I have not relied upon anything in that affidavit in consideration of these matters. Nor did I have regard to the contents of that affidavit in making the orders on 23 December 2004. 8 On 31 October 2004 the respondent filed draft Minutes of Order seeking the following orders: '1. So much of the judgment of Justice Branson in Action No: SG 112 of 1993 given on 8 February 1996 be set aside as: 1.1 Dismissed the claim of the Second Applicant, and the First Applicant as assignee, for breach of the term implied by section 14 I of the Sale of Goods Act in those contracts alleged in the Statement of Claim which related to the sale by the Respondent to the Second Applicant of Doc 3 pumps; 1.2 Ordered the Applicants to pay the Respondent's costs in respect of that claim. 2. That the order of Justice Branson in Action No: SG 112 of 1993 given on 19 December 1997 fixing a lump sum for the Respondent's costs be set aside. 3. The originating Application be referred to Branson J for further directions.