Felix v NULIS Nominees (Australia) Ltd (No 2) [2020] FCA 760

FEDERAL COURT OF AUSTRALIA

Felix v NULIS Nominees (Australia) Ltd (No 2) [2020] FCA 760 File number: NSD 181 of 2019

Judge: STEWART J

Date of judgment: 3 June 2020

Catchwords: COSTS – discretion as to costs – application for party and party costs order – where second respondent was wholly successful in principal case – where applicant does not oppose the order sought by the second respondent

Date of hearing: Determined on the papers

Date of last submissions: 27 May 2020

Registry: New South Wales

Division General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 7

Solicitor for the Applicant: Marsdens Law Group

Counsel for the First Respondent: The first respondent filed a submitting appearance save as to costs

Counsel for the Second Respondent: J G Duncan

Solicitor for the Second Respondent: Clyde & Co Australia

ORDERS NSD 181 of 2019

BETWEEN: KERRY FELIX Applicant

AND: NULIS NOMINEES (AUSTRALIA) LTD First Respondent

AMP LIFE LTD ABN 84 079 300 379 Second Respondent

JUDGE: STEWART J DATE OF ORDER: 3 JUNE 2020

THE COURT ORDERS THAT:

1. The applicant pay the second respondents' costs of the proceeding on a party and party basis. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J: 1 On 4 May 2020, I dismissed the applicant's appeal against a decision of the Superannuation Complaints Tribunal: Felix v NULIS Nominees (Australia) Ltd [2020] FCA 591. I gave the parties leave to file written submissions in support of any costs order which they may seek, failing which there would be no order as to costs. 2 The second respondent has filed submissions in which it seeks its costs from the applicant on the ordinary party and party basis. It has tendered an offer that it made to the applicant on 28 February 2020 that it would bear its own costs if the applicant abandoned her appeal. The applicant rejected that offer on 4 March 2020. 3 The second respondent submits that the rejection of that offer was unreasonable with the result that it would ordinarily be entitled to costs on an indemnity basis from 4 March 2020. However, it submits that an appropriate exercise of the Court's discretion would be a party and party costs order. I infer that that approach is motivated by a level of sympathy for the applicant's position which, regardless of the merits of the case, reveals significant suffering by her. 4 By email to my Associate on 27 May 2020, the applicant has indicated that she does not intend to make any submissions against the costs order sought by the second respondent. 5 The first respondent has not made any submission on costs. The second respondent's offer to the applicant on 28 February 2020, referred to above, refers to an agreement between the applicant and the first respondent that the first respondent would file a submitting appearance and bear its own costs. I infer that that agreement is the reason why the first respondent has made no submission to the Court on costs. 6 The second respondent was wholly successful in the principal case. In the ordinary course, the costs should follow that event. That is what the second respondent seeks, and the applicant does not oppose it. Given the attitudes of the parties, and in particular that the second respondent does not seek indemnity costs – a commendable approach, the applicant should pay the second respondent's costs on a party and party basis. 7 I will order accordingly. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart.