CBS Commercial Canberra Pty Ltd v AXIS Commercial (ACT) Pty Ltd, in the matter of CBS Commercial Canberra Pty Ltd (No 2) [2022] FCA 687

Federal Court of Australia

CBS Commercial Canberra Pty Ltd v AXIS Commercial (ACT) Pty Ltd; In the matter of CBS Commercial Canberra Pty Ltd (No 2) [2022] FCA 687 File number(s): ACD 34 of 2021

Judgment of: HALLEY J

Date of judgment: 14 June 2022

Catchwords: COSTS – indemnity costs – costs on the ordinary basis – application to set aside statutory demand – where plaintiff's submissions alerted defendant to authority making it unlikely defendant would succeed – where defendant's decision to persist in its defence gave rise to a relevant delinquency or special or unusual feature justifying award of indemnity costs – indemnity costs awarded from date of plaintiff's submissions

Legislation: Corporations Act 2001 (Cth) s 459H Building and Construction (Security of Payment) Act 2009 (ACT) Uniform Civil Procedure Rules 2005 (NSW)

Cases cited: Austrac Rail P/L v Hunter Premium Funding Limited [2001] NSWSC 654 Barboza v Blundy & others [2021] QSC 82 Calderbank v Calderbank [1975] 3 All ER 333 CBS Commercial Canberra Pty Ltd v Axis Commercial (ACT) Pty Ltd, in the matter of CBS Commercial Canberra Pty Ltd [2022] FCA 544 Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225 Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 533 Mallonland Pty Ltd & Anor v Advanta Seeds Pty Ltd [2021] QSC 132 Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Professional Advantage Pty Ltd v Australian Broadcasting Commission [2007] NSWSC 607 Re J Group Constructions Pty Ltd (2015) 303 FLR 139; [2015] NSWSC 1607 Tekno Autosports Pty Limited v Jenkins (No 2) [2014] FCA 809