Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Lowe v Mack Trucks Australia Pty Limited (No 2) [2008] FCA 711
COSTS – principles relevant to an award of costs – whether Court should depart from the ordinary rule
Federal Court of Australia Act 1976 (Cth) s 43 Federal Court Rules (Cth) O 62 Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 referred to Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 referred to Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 followed Abbott v Random House Australia Pty Ltd [1999] FCA 1540 referred to Hamod v State of New South Wales (2002) 188 ALR 659 followed Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 approved Xat Ky v Australvic Property Management Pty Ltd (No 2) [2007] FCA 1785 referred to Rosniak v Government Insurance Office (1997) 41 NSWLR 608 referred to Tetijo Holdings Ltd v Keeprite Australia Pty Ltd [1991] FCA 187 referred to GRAHAM LOWE and ERICA LOWE v MACK TRUCKS AUSTRALIA PTY LIMITED
VID 249 OF 1999
KENNY J
21 MAY 2008
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VID 249 OF 1999
BETWEEN: GRAHAM LOWE
First Applicant
ERICA LOWE
Second Applicant
AND: MACK TRUCKS AUSTRALIA PTY LIMITED
Respondent
JUDGE: KENNY J
DATE OF ORDER: 21 MAY 2008
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT: 1. Save for: (a) costs thrown away by reason of the abandonment of the two expert witness reports of Dr Arnold McLean filed in September 2004 and in February 2006 respectively; and (b) the costs incurred by reason of the late discovery of the CD-ROM containing the FORS raw data referred to in [14] of these reasons the applicants pay the respondent's costs of and incidental to the proceeding, including reserved costs, on a party and party basis, to be taxed in default of agreement. 2. The applicants pay such of the respondent's costs as fall within in (a) and (b) in [1] above on an indemnity basis, to be taxed in default of agreement. 3. Upon the expiration of time in which to appeal from my judgment of 4 April 2008 or the determination of any appeal from that judgment (whichever is later), all documents relating to the schematics and/or construction of any vehicle designed and/or manufactured by the respondent which have been provided by the respondent to the applicants in any form whatsoever (whether paper, electronic or otherwise) and any copies of such documents, whether in the possession of the applicants, their legal representatives or witnesses called by them, be returned to the solicitors for the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA
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