Leach v Burston (No 2) [2022] FCA 178

Federal Court of Australia

Leach v Burston (No 2) [2022] FCA 178 File number(s): NSD 1229 of 2020

Judgment of: HALLEY J

Date of judgment: 4 March 2022

Catchwords: COSTS – costs of interlocutory application for strike out and/or summary dismissal – where applicant seeks order that respondent pay 60% of applicant's costs of and incidental to the hearing of the interlocutory application, and costs of costs application – where respondent seeks order that the parties' costs of and incidental to the hearing of the interlocutory application be costs in the cause – discretionary power to award costs – where significant matter of principle raised in interlocutory application but not suitable to be determined prior to final hearing – where respondent had limited success in interlocutory application – where apportionment of costs not appropriate – applicant's costs to be costs in the cause – no costs order to be made in relation to applications for costs

Legislation: Federal Court of Australia Act 1976 (Cth) s 43 Federal Court Rules 2011 (Cth) r 40.04

Cases cited: 3 Property Group 13 Pty Ltd (in liq) v 3 Property Group 17 Pty Ltd (No 2) [2021] FCA 1371 Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd (No 2) [2017] FCAFC 110 Australian Securities and Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd (No 2) [2017] FCA 385 Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192; [2015] HCA 35 His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Incorporated & Anor (No 2) [2007] NSWCA 142 InterPharma Pty Ltd v Hospira, Inc (No 4) [2018] FCA 45 Leach v Burston [2022] FCA 78 Moroccanoil Israel Ltd v Aldi Foods Pty Ltd (No 2) [2017] FCA 1393 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 RB (Hygiene Home) Australia Pty Ltd v Henkel Australia Pty Ltd (No 2) [2021] FCA 1194 Ruddock and Others v Vadarlis and Others (No 2) (2001) 115 FCR 229; [2001] FCA 1865 Smith v Starke, in the matter of Action Paintball Games Pty Ltd (in liq) (No 3) [2016] FCA 40 Summers v Repatriation Commission (No 2) [2015] FCAFC 64 Taylor (liquidator), in the matter of Heading Contractors Pty Ltd (in liq) v Heading (No 2) [2021] FCA 925 Trade Practices Commission v Nicholas Enterprises Pty Ltd and Others (No 3) (1979) 42 FLR 213; [1979] FCA 143 Vantage Holdings Pty Ltd v Huang (No 2) (2015) 232 FCR 556; [2015] FCA 185