FEDERAL COURT OF AUSTRALIA Oztech Pty Ltd v Public Trustee of Queensland (No 18) [2020] FCA 399 File numbers: NSD 937 of 2014 NSD 1185 of 2018 Judge: YATES J Date of judgment: 27 March 2020 Catchwords: COSTS – application for lump sum costs order – referral to Registrar of the Court for inquiry and report as a referee – whether mediation of costs questions before referral to referee preferable - liability of litigation funder for costs of appeal Legislation: Federal Court of Australia Act 1976 (Cth) ss 53A, 54A Federal Court Rules 2011 (Cth) Div 28.6, rr 28.65(1), 28.65(7), 28.67 Date of hearing: Determined on the papers Date of last submissions: 24 March 2020 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: A Hochroth Solicitor for the Applicant: The Banton Group Counsel for the Respondent: DB O'Sullivan QC and FY Lubett Solicitor for the Respondent: Clayton Utz Solicitor for International Litigation Partners No.9 Pte Ltd: Cornwalls ORDERS NSD 937 of 2014 BETWEEN: OZTECH PTY LTD ACN 005 907 871 Applicant AND: THE PUBLIC TRUSTEE OF QUEENSLAND Respondent JUDGE: YATES J DATE OF ORDER: 27 MARCH 2020 THE COURT ORDERS THAT: 1. The interlocutory application filed in NSD 1185/2018 on 28 February 2020 (the NSD 1185 application) be heard concurrently with the interlocutory application filed on 28 February 2020 in proceeding NSD 937 of 2014 (the NSD 937 application). 2. Pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) and Div 28.6 of the Federal Court Rules 2011 (Cth) (the Rules), the issues of fact and law raised by paras 2 and 3 of the NSD 1185 application, and paras 1 and 2 of the NSD 937 application be referred to a Registrar of the Court for inquiry and report as a referee (the referee). 3. The referee shall provide his or her opinion as to the matters referred, including: (a) whether a lump sum costs order should be made in the proceedings at first instance, and/or on appeal; and (b) if so, the quantum of the lump sum costs order/s. 4. In the conduct of the reference, the referee is to afford the parties procedural fairness, and is otherwise to conduct the reference in such manner as he or she thinks fit, including as to: (a) the time for the filing of the statement required by r 28.65(7) of the Rules; (b) directions otherwise to be made as to the filing of submissions and/or evidence; (c) the time and place of any hearing; and (d) the manner in which any hearing is to be conducted. 5. The referee is to report by 30 June 2020, or such later date as the Court orders. 6. The report shall be provided to the Court, and a copy to each of the parties. 7. Any application by a party for orders pursuant to r 28.67 of the Rules shall be made within 14 days of receipt of the report by that party. 8. The parties have liberty to apply for directions under r 28.65(1) of the Rules, or otherwise in connection with the reference, or the applications referred to in Order 1, on 3 days' written notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 1185 of 2018 BETWEEN: OZTECH PTY LTD ACN 005 907 871 Applicant AND: THE PUBLIC TRUSTEE OF QUEENSLAND Respondent JUDGE: YATES J DATE OF ORDER: 27 March 2020 THE COURT ORDERS THAT: 1. The interlocutory application filed in NSD 1185/2018 on 28 February 2020 (the NSD 1185 application) be heard concurrently with the interlocutory application filed on 28 February 2020 in proceeding NSD 937 of 2014 (the NSD 937 application). 2. International Litigation Partners No.9 Pte Ltd be jointly and severally liable, with the appellant, for the respondent's costs of the appeal to the Full Court. 3. Pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) and Div 28.6 of the Federal Court Rules 2011 (Cth) (the Rules), the issues of fact and law raised by paras 2 and 3 of the NSD 1185 application, and paras 1 and 2 of the NSD 937 application be referred to a Registrar of the Court for inquiry and report as a referee (the referee). 4. The referee shall provide his or her opinion as to the matters referred, including: (a) whether a lump sum costs order should be made in the proceedings at first instance, and/or on appeal; and (b) if so, the quantum of the lump sum costs order/s. 5. In the conduct of the reference, the referee is to afford the parties procedural fairness, and is otherwise to conduct the reference in such manner as he or she thinks fit, including as to: (a) the time for the filing of the statement required by r 28.65(7) of the Rules; (b) directions otherwise to be made as to the filing of submissions and/or evidence; (c) the time and place of any hearing; and (d) the manner in which any hearing is to be conducted. 6. The referee is to report by 30 June 2020, or such later date as the Court orders. 7. The report shall be provided to the Court, and a copy to each of the parties. 8. Any application by a party for orders pursuant to r 28.67 of th