Connelly (liquidator), in the matter of CIMC Rolling Stock Australia Pty Ltd (in liq) v One Rail Australia (FLA) Pty Ltd (No 4) [2022] FCA 858

Federal Court of Australia

Connelly (liquidator), in the matter of CIMC Rolling Stock Australia Pty Ltd (in liq) v One Rail Australia (FLA) Pty Ltd (No 4) [2022] FCA 858 File number(s): QUD 134 of 2021

Judgment of: DOWNES J

Date of judgment: 22 July 2022

Catchwords: COSTS – application by cross-claimant for leave to file notice of discontinuance in respect of second cross-defendant – where discontinuance by consent in respect of originating application and all other cross-defendants – second cross-defendant applied for costs on indemnity basis because of settlement offer which included a term requiring the cross-claimant to release and discharge him – stage of proceedings at which offer was made – where assessment of strength of cross-claim turned in part on assessment of credit of witnesses without the benefit of a trial – application for leave to file notice of discontinuance granted – application for indemnity costs refused

Legislation: Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) rr 1.35, 25.14, 26.12(7)

Cases cited: Anchorage Capital Partners Pty Limited v ACPA Pty Ltd (No 2) [2018] FCAFC 112 Brooke & Mackenzie Pty Ltd v El-Gra Engineering Pty Ltd (2015) 116 IPR 521; [2015] FCA 1495 Calderbank v Calderbank [1975] 3 All ER 33 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Reurich v Club Jervis Bay Ltd (No 2) [2018] FCA 1727 Ringshaug v Comcare (No 2) [2017] FCA 349 Sydney Equine Coaches Pty Ltd v Gorst [2017] FCAFC 34 Taleb v GM Holden Limited (2011) 94 IPR 459; [2011] FCAFC 168