Case: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 920
Outcome: related
In their written submissions the respondents submitted that, for the proper attainment of justice and enforcing the respondents' rights in these proceedings, it was appropriate for the respondents to have: (a) retained and incurred the fees of both senior and junior counsel; (b) engaged and incurred the costs of the expert forensic accountant, Mr Lytras; (c) engaged and incurred costs of the expert valuer, Mr Harrison. These submissions are not disputed by the applicants. Indeed I note that both applicants and respondents retained senior counsel, and engaged experts to provide expert evidence including forensic and valuation evidence. However, whether these costs were incurred for the proper attainment of justice and enforcing the respondents' rights is, in default of agreement, a matter for the taxing officer under O 62 r 19 Federal Court Rules rather than this Court: Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2007] FCA 1497 at [2] . Issues requiring consideration 5 Three issues remain in dispute between the parties. These issues are: 1. The basis upon which the respondents' costs, payable by the applicants, should be assessed. The respondents have submitted that the applicants should be ordered to pay the costs of the respondents in the proceedings, including the cross-claim which was defended on the basis of the misrepresentation case, and including any reserved costs, on an indemnity basis. The applicants have submitted that these costs should be paid on the standard basis, namely party to party. 2. Liability for costs related to the orders of 18 July 2006 ( Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 920) and the directions hearing of 21 July 2006. 3. Release of the cheque of $150,000 and bank guarantee of $75,000 provided by the first and third applicants as security for the respondents' costs. 21 The proximate reason for the adjournment of the trial on 18 July 2006 was, as I explained in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 920 , the inability of the applicants to properly consider additional witness statements totalling some 3785 pages in length, delivered over 10 days in the lead up to the scheduled commencement of the trial. While I note the late completion of Mr Robertson's expert reports, there is, in the absence of evidence, no basis for the respondents' claim (in considerable hindsight) that the absence of those reports meant that the applicants were not in a position to prove their case had the hearing proceeded as scheduled on 17 July 2006. The practical effect of the vacation of the trial dates was that both applicants and respondents were able to file, at later dates, supplementary evidence including further expert reports as permitted by my orders of 9 August 2006. Indeed I also note that, in accordance with my orders of 9 August 2006, the respondents filed considerable additional evidence upon which they relied at trial, including an affidavit of Mr Burns (filed 28 July 2006), affidavits of Mr Strahley (filed 11 August 2006 and 18 August 2006), and affidavits of Mr Harrison, Mr Breed and Mr Bailey (filed 18 August 2006). 22 In my view the appropriate order is that the applicants should have their costs thrown away by the adjournment of the trial on 18 July 2006 on a party to party basis, as well as the costs of the hearing of 21 July 2006. 23 The respondents have submitted that they should have the benefit of a cheque and bank guarantee in the combined amount of $225,000 as security for their costs pursuant to the orders made on 1 June 2006 in the sum of $150,000 and on 5 December 2006 in the sum of $75,000. The applicants have submitted that the moneys paid into Court as security for costs should not be released without the ascertainment of the actual costs payable by the applicants to the respondents.