J.H. Lever & Co Pty Ltd v Maniotis [2005] FCA 252

FEDERAL COURT OF AUSTRALIA

J.H. Lever & Co Pty Ltd v Maniotis [2005] FCA 252

PRACTICE AND PROCEDURE – leave to discontinue – where applicant chose to tender no evidence – whether application should be dismissed or leave to discontinue granted – whether leave to discontinue may be granted on the basis that the respondent pay the applicant's costs – responsibility of parties to ensure that litigation does not proceed on misconception or an apparent false assumption COSTS – application dismissed as applicant tenders no evidence – respondent's grounds for opposition disclosed late in time – whether respondent should pay certain of the costs of the proceeding

Harvey Norman Holdings Ltd v Fels (2002) ATPR 41-852; [2002] FCA 13 cited O'Neill v Mann [2000] FCA 1680 approved Re Minister for Immigration & Ethnic Affairs; Ex party Lai Quin (1997) 186 CLR 622 cited White v Overland [2001] FCA 1333 approved Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 applied Newcomen v Coulson (1878) 7 Ch D 764 applied J.H. LEVER & CO PTY LTD ACN 008 220 666 v CON MANIOTIS & TASTE MASTER PTY LTD ACN 066 595 944 & ANDREW FOTHERINGHAM & BRETT COPPING SAD.803 of 2003 MANSFIELD J 21 MARCH 2005 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD.803 OF 2003

BETWEEN: J.H. LEVER & CO PTY LTD ACN 008 220 666

APPLICANT

AND: CON MANIOTIS

FIRST RESPONDENT

TASTE MASTER PTY LTD ACN 066 595 944

SECOND RESPONDENT

ANDREW FOTHERINGHAM

THIRD RESPONDENT

BRETT COPPING

FOURTH RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 21 MARCH 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

(1) The application is dismissed.

(2) The applicant pay to the first, second and third respondents their costs of the application made on 13 October 2003 up to and including 17 September 2004. (3) The first, second and third respondents pay to the applicant its costs of the application made on 13 October 2003 as amended on 26 October 2004 from 18 September 2004 to 1 February 2005, other than its costs incurred solely in relation to the fourth respondent. (4) There be no order for costs in favour of the applicant or in favour of the first, second and third respondents of the application made on 13 October 2003 as amended on 26 October 2004 from 2 February 2005. (5) The applicant pay to the fourth respondent his costs of the application made on 13 October 2003 as amended on 26 October 2004 up to 7 March 2005 to the extent that such costs were incurred solely in his conduct of the proceedings. (6) The parties have liberty to apply.