Case: Australian Agricultural Co Ltd v AMP Life Ltd [2003] FCA 1134
Outcome: referred to
In Australian Agricultural Co Ltd v AMP Life Ltd [2003] FCA 1134 Sackville J considered it appropriate to award costs against an unsuccessful applicant for an interlocutory injunction where the applicant had failed, not only on the balance of convenience ground, but also on the serious question to be tried ground. 11 Orrcon submits that it succeeded on a substantial matter involved in its interlocutory application in that it succeeded in establishing that there was a serious question to be tried in relation to the allegation that the pipe was defective. (See [42]-[49] of my previous reasons.) However, the fact is that in terms of the interlocutory relief it sought, Orrcon failed to establish a serious question to be tried and, in any event, the balance of convenience favoured the refusal of relief. In addition, my decision means that Orrcon's claim for final relief in relation to the Westpac letter of credit is otiose. In those circumstances, I think it is appropriate to order that Orrcon pay Capital Steel's costs of the application for interlocutory relief. 12 Orrcon submits that if, contrary to its primary submission, I award costs in favour of Capital Steel, then I should reflect in any such order the fact that it succeeded in establishing a serious question to be tried in relation to the allegation that the pipe was defective. Three experts who gave evidence in support of that allegation were cross-examined by counsel for Capital Steel and the issue occupied some time. I could reflect Orrcon's success on that particular matter by making different costs orders with respect to different issues, or I could reduce the costs otherwise payable to Capital Steel by Orrcon. 21 In Australian Agricultural Co Ltd v AMP Life Ltd [2003] FCA 1134 , Sackville J held that the case before him came within the first and third categories. His Honour said (at [14]-[16]): In the present case, I think the application for an interlocutory injunction can fairly be regarded as a self-contained part of the proceedings. The failure of the application for an injunction effectively means that the claim for this form of relief has been finally disposed of. While it is open to AACo to pursue other relief against AMP, such as its claim for damages, the overwhelming likelihood is that the Stanbroke Shares have now been transferred to Nebo as the purchaser. Moreover, there is nothing in the proceedings to indicate that AACo intends to seek relief against Nebo in these proceedings. In addition, if AACo does pursue claims against AMP, it would seem that the litigation will take a considerable period of time to resolve. Unless an order is made for the payment of costs forthwith, AMP is unlikely, in the ordinary course of events, to recover its costs in respect of the interlocutory proceedings for a lengthy period. I think that each of these factors justifies making an order in terms of FCR, O 62 r 3(3). In my opinion, the demands of justice require that there be a departure from the general practice that an order for costs of an interlocutory proceeding should not entitle a party to have a bill of costs taxed until the principal proceedings have been concluded. Accordingly, I propose to order that AACo pay AMP's costs of the interlocutory proceedings forthwith and that AMP be entitled to have its bill of costs taxed forthwith. 22 Capital Steel's success on the application for interlocutory relief means that Orrcon's claim for final relief in relation to the Westpac letter of credit is otiose. That is a significant factor in favour of the order sought by Capital Steel. Capital Steel submits that Orrcon's conduct was unreasonable in the following ways: 1. The refusal, or at least failure, by Orrcon to particularise its plea of unconscionable conduct; 2. Orrcon's failure to establish a serious question to be tried; 3. The fact that the orders sought by Orrcon would have involved a substantial interference in the commercial relationship between Capital Steel and the Commonwealth Bank (see [108] of my previous reasons); 4. The fact (so it is said by Capital Steel) that Orrcon has not quantified its claim against it (see [105] of my previous reasons); and 5. The fact (so it is said by Capital Steel) that Orrcon has unlawfully refused to make payment of a separate amount due by it to Capital Steel (see [105] of my previous reasons). 23 I do not think that any of these matters constitute unreasonable conduct in the relevant sense.