Case: Barrett Property Group Limited v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823
Outcome: referred to
Other cases decided recently in this Court show that these principles are regularly applied: see, e.g., Barrett Property Group Limited v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823 (" Barrett ") at [3]-[5] per Gilmour J; Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785 at [12] - [13] , [29] per Middleton J; Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] per Collier J; Jainshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 per Besanko J; and Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] per Finn J. 40 As Gilmour J said in Barrett at [23]-[24]: The general rule under Order 62 rule 3(3) may be departed from where the party in whose favour the costs order was made was required by the interlocutory proceeding to 'incur significant costs over and above those which it would have incurred had the opposing party acted with competence and diligence': Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 ; where the proceeding is complex and its final resolution is a long time away: Allstate Life Insurance Co v ANZ Banking Group Ltd [1995] FCA 660 ; Readymix Holdings International Pty Ltd v Wieland Process Equipment Pty Ltd [2006] FCA 1297: Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347. In McKellar v Container Terminal Management Services Ltd [1999] FCA 163 9, Weinberg J adopted the observation of Lindgren J in Allstate that: ... the power to order that costs be paid forthwith should perhaps be used less sparingly than it has in the past. This is particularly so in lengthy and complex cases where substantial costs have been thrown away as a result of ill-considered pleadings being drawn. Such costs should be capable of being recovered without the innocent party having to wait, possibly for years, for that to occur. In Barrett , Gilmour J referred to a number of cases in which the unsuccessful respondents in intellectual property cases were ordered to pay costs forthwith: see Barrett at [26]-[28]. As his Honour noted, however, each case depends very much on its own circumstances. 41 Having regard to the nature of the case, including the claims and diverse cross-claims that it involved, the evidence adduced by the parties, and the length of the trial, it may safely be assumed that the applicants have already incurred substantial costs. These costs are independent of the quantum of damages, which has yet to be established. The disposition of the quantum case may be some way off. Moreover, the applicants submit that "[t]he claim for damages may be rendered nugatory by the fact that the second respondent is once again bankrupt and by the first respondent's uncertain financial position". The respondents have not disputed this proposition. In the circumstances, it is appropriate that there be an order that the costs of the proceeding to date of the applicants/cross- respondents be paid forthwith. 42 The applicants also seek liberty to apply for an order that the costs in their favour be fixed in a gross sum in accordance with O 62 r 4(2)(c) of the Rules. They note (and the respondents do not dispute) the second respondent's current status as an undischarged bankrupt. They also note (and the respondents do not dispute) that the first respondent is a foreign corporation registered to conduct business in Australia without obvious assets in Australia. As already observed, the costs involved are likely to be substantial. Having regard to the course of the proceeding to date, it may reasonably be assumed that taxation will be drawn-out and expensive. The applicants may well be obliged to meet the entire financial burden. In these circumstances, the applicants have liberty to apply for an order that the costs in their favour be fixed in a gross sum in accordance with the Rules.