FEDERAL COURT OF AUSTRALIA Georgiou v Spencer Holdings Pty Ltd (No 5) [2011] FCA 1233 Citation: Georgiou v Spencer Holdings Pty Ltd (No 5) [2011] FCA 1233 Parties: EKATERINA (KATERINA) GEORGIOU v SPENCER HOLDINGS PTY LTD ACN 096 497 148 TRADING AS PROPELL NATIONAL VALUERS (SA), KELVIN JAMES SPENCER, JAMES SPENCER, TERRI CHURCH and JANINE BACKSHALL File number: SAD 68 of 2010 Judge: BESANKO J Date of judgment: 2 November 2011 Date of hearing: 28 October 2011 Place: Adelaide Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 12 Counsel for the Applicant: Mr P Heywood-Smith QC with Mr L Leventis Solicitor for the Applicant: Camatta Lempens Pty Ltd Counsel for the First, Second, Fifth and Sixth Respondents: Mr M Roder SC with Ms T Birss Solicitor for the First, Second, Fifth and Sixth Respondents: DLA Phillips Fox Counsel for the Fourth Respondent: Ms F Stevens IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 68 of 2010 BETWEEN: EKATERINA (KATERINA) GEORGIOU Applicant AND: SPENCER HOLDINGS PTY LTD ACN 096 497 148 TRADING AS PROPELL NATIONAL VALUERS (SA) First Respondent KELVIN JAMES SPENCER Second Respondent JAMES SPENCER Fourth Respondent TERRI CHURCH Fifth Respondent JANINE BACKSHALL Sixth Respondent JUDGE: BESANKO J DATE OF ORDER: 2 NOVEMBER 2011 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The applicant pay the respondents' costs of and incidental to the applicant's notice of motion dated 10 August 2010. 2. The applicant pay the third respondent's costs of the proceeding. 3. The applicant pay the first and second respondents' costs of and incidental to the applicant's notice of motion dated 19 May 2011. 4. The applicant pay the first, second, fifth and sixth respondents' costs of her oral application that the second respondent be dux litis on certain issues. 5. The applicant pay the fourth respondent's costs of his attendance on 26 May 2011. 6. The applicant pay the first, second, fifth and sixth respondents' costs of and incidental to their notice of motion dated 20 June 2011. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 68 of 2010 BETWEEN: EKATERINA (KATERINA) GEORGIOU Applicant AND: SPENCER HOLDINGS PTY LTD ACN 096 497 148 TRADING AS PROPELL NATIONAL VALUERS (SA) First Respondent KELVIN JAMES SPENCER Second Respondent JAMES SPENCER Fourth Respondent TERRI CHURCH Fifth Respondent JANINE BACKSHALL Sixth Respondent JUDGE: BESANKO J DATE: 2 NOVEMBER 2011 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 These brief reasons deal with various applications for costs in this proceeding. The Applicant's Notice of Motion dated 10 August 2008 2 The nature of this notice of motion and the circumstances surrounding it were the subject of my reasons in Georgiou v Spencer Holdings Pty Ltd [2010] FCA 1409 and Georgiou v Spencer Holdings Pty Ltd (No 2) [2011] FCA 22. 3 The parties made written submissions on the appropriate orders for costs on the notice of motion and with respect to the dismissal of the applicant's claim against the third respondent. I have taken those submissions into account. 4 The respondents made a number of objections to the Statement of Claim. For the most part those objections were well-founded and were upheld. In those circumstances they should have their costs of and incidental to the notice of motion. Those costs should be assessed on a party and party basis. The respondents seek an order that their costs be taxed and paid forthwith. The Court has the power to make such an order: Federal Court Rules 2011, r 40.13 and the general rules in r 1; Federal Court Rules in force prior to 1 August 2011 O 62 r 3. I reviewed the relevant principles in relation to the application of O 62 r 3 in Orrcon Operations Pty Ltd v Capital Steel & Pipe Pty Ltd (No 2) [2008] FCA 24 at [7]-[26] and Rafferty v Time 2000 West Pty Ltd (No 3) (2009) 257 ALR 503 at 508-509 [19]-[24]. 5 Although the applicant made a number of attempts to plead her case properly, I am not persuaded that the circumstances in this case warrant an order that the respondents' costs be taxed and paid forthwith. 6 The claim against the third respondent was dismissed on 20 January 2011. Nothing put by the applicant persuades me that costs should not follow the event and therefore the third respondent is entitled to an order for costs against the applicant. I am not persuaded that those costs should be assessed on a basis other than a party and party basis. As things presently stand, there is no need to consider whether those costs can be taxed forthwith. As I have said, the claim against her has been dismissed. The Applicant's Notice of Motion dated 18 May 2011 7 The nature of this notice of motion and the circumstances surrounding it were the subject of my reasons in Georgiou v Spencer Holdings Pty Ltd (No 3) [2011] FCA 602. The applicant was unsuccessful on this notice of motion and should pay the first and second respondents' costs of the notice of motion. The respondents asked for an order that the costs be taxed and paid forthwith. They point to the fact that the evidence in support of the application was weak and that the application was in the nature of a separate application with respect to which the applicant has been unsuccessful. There is force in those submissions, but ultimately I am not persuaded that it is appropriate to order that the costs be taxed and paid forthwith. Oral Application that as to certain issues the Second Respondent be dux litis 8 The nature of this application and the circumstances surrounding it were also the subject of my reasons in Georgiou v Spencer Holdings Pty Ltd (No 3) [2011] FCA 602. 9 I see no reason why the second respondent should not receive his costs of this application. 10 The fourth respondent seeks his costs of this application. I was told that he was not advised that he was not the subject of the application until the day upon which submissions were made, that is to say, on 26 May 2011. In my opinion, the appropriate order in the circumstances is that the applicant pay the fourth respondent's costs of attendance on 26 May 2011. The First, Second, Fifth and Sixth Respondents' Notice of Motion dated 20 June 2011 11 The nature of this notice of motion and the circumstances surrounding it were the subject of my reasons in Georgiou v Spencer Holdings Pty Ltd (No 4) [2011] FCA 1222. The first, second, fifth and sixth respondents were substantially successful on the notice of motion and the applicant should pay their costs of the notice of motion. The Applicant's Notice of Motion dated 15 July 2011 12 The parties have already made some submissions about the costs of this notice of motion. If necessary I will hear further from the parties as to the costs of this notice of motion. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 2 November 2011