Harvard Nominees Pty Ltd v Tiller (No 5)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 15 December 2022
• Neutral Citation: [2022] FCA 1510
• Date: 15 December 2022

Federal Court of Australia

Harvard Nominees Pty Ltd v Tiller (No 5) [2022] FCA 1510

File number:	WAD 250 of 2019
Judgment of:	JACKSON J
Date of judgment:	15 December 2022
Catchwords:	COSTS - indemnity costs - Calderbank offer - principles relating to Calderbank offers in proceedings with multiple respondents - offer incapable of acceptance by each respondent independently - offer did not differentiate between the different positions of the different respondents - judgment result potentially less favourable to successful party - conduct of respondents' defence did not go beyond bounds of appropriateness - indemnity costs orders not made ; COSTS - two successful respondents and two unsuccessful respondents - 'rule of thumb' relating to jointly represented parties where some are successful and some are unsuccessful - reduction in costs awarded to successful respondent who engaged in misleading and deceptive conduct - other successful respondent awarded proportionate share of costs ; COSTS - consideration of principles relating to Sanderson orders - when unsuccessful respondent pays costs of successful respondents - reasonable for successful respondent to be joined - conduct of unsuccessful respondent does not make it fair for it to bear successful respondents' costs - Sanderson order not made
Legislation:	Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 18, 236, 237 Corporations Act 2001 (Cth) s 500 Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Cases cited:	Amadio Pty Ltd v Henderson (1998) 81 FCR 149 Anchorage Capital Partners Pty Limited v ACPA Pty Ltd (No 2) [2018] FCAFC 112 Archer v Archer (No 2) [2000] NSWCA 315 Australian Securities and Investments Commission v One Tech Media Ltd (No 6) [2020] FCA 842 Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195 Currabubula & Paola v State Bank of New South Wales [2000] NSWSC 232 Darshn v Avant Insurance Limited (No 3) [2021] FCA 1035 Frigger v Trenfield (No 12) [2022] FCA 900 Gould v Vaggelas (1985) 157 CLR 215 Harvard Nominees Pty Ltd v Tiller (No 2) [2020] FCA 604 Harvard Nominees Pty Ltd v Tiller (No 3) [2020] FCA 1054 Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105 Harvard Nominees Pty Ltd v Tiller [2020] FCAFC 229; (2020) 282 FCR 530 Harvard Nominees Pty Ltd v Nicoletti [2022] FCAFC 179 Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 Johnson's Tyne Foundry Pty Ltd v Shire of Maffra (1948) 77 CLR 544 Lackersteen v Jones (No 2) [1988] NTSC 72; (1998) 38 NTLR 101 Morris v Riverwild Management Pty Ltd [2011] VSCA 283; (2011) 38 VR 103 Popovic v ACN 098 054 678 Pty Ltd (Costs Ruling) [2012] VSC 612 Rafferty v Time 2000 West Pty Limited (No 5) [2010] FCA 873 Re Employ (No 96) Pty Ltd (in liq) [2013] NSWSC 456 Sanderson v Blyth Theatre Co [1903] 2 KB 533 Steppke v National Capital Development Commission (1978) 21 ACTR 23 Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 Tresize v National Australia Bank Ltd [1999] FCA 28 Wieland v Texxcon Pty Ltd [2014] VSCA 199 WSA Online Limited v Arms (No 2) [2006] FCAFC 108 Wyzenbeek v Australasian Marine Imports Pty Ltd (No 3) [2019] FCA 439
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	68
Date of hearing:	20 June 2022
Counsel for the Applicant:	Mr MC Hotchkin
Solicitor for the Applicant:	Hotchkin Hanly Lawyers
Counsel for the Third and Fourth Respondents:	Mr MD Cuerden SC with Mr AM Freund
Solicitor for the Third and Fourth Respondents:	Lawton Gillon
Counsel for the First, Second and Fifth Respondents:	The first, second and fifth respondents did not appear

ORDERS

		WAD 250 of 2019
BETWEEN:	HARVARD NOMINEES PTY LTD (ACN 008 761 037) Applicant
AND:	SIMON CLIFFORD TILLER First Respondent ; DIMENSION AGRICULTURE PTY LTD Second Respondent ; GIOVANNI BASILIO NICOLETTI Third Respondent ; DAMIAN GLEN BRYCE Fourth Respondent ; FELICITY HELEN TILLER Fifth Respondent

order made by:	JACKSON J
DATE OF ORDER:	15 December 2022

THE COURT ORDERS THAT:

1. The first respondent and the second respondent must pay the applicant's costs of the proceeding (excluding the costs in respect of this judgment), to be assessed if not agreed.

2. The applicant must pay to the third respondent 10% of the Respondents' Costs, being the respondents' costs of the proceeding, excluding the costs in respect of this judgment, to be assessed if not agreed.

3. The applicant must pay to the fourth respondent 25% of the Respondents' Costs.

4. The applicant must pay the third and fourth respondents' costs in respect of this judgment (including the hearing of 20 June 2022), to be assessed if not agreed.

5. Liberty to apply in relation to paragraph 4 on or before 10 January 2023.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1. These reasons concern the costs of proceedings in the original jurisdiction of this Court that have been resolved by a combination of the reasons given and orders made in the following judgments:

1. Harvard Nominees Pty Ltd v Tiller (No 2) [2020] FCA 604 (Trial Judgment);

2. Harvard Nominees Pty Ltd v Tiller [2020] FCAFC 229; (2020) 282 FCR 530 (First Appeal Judgment);

3. Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105 (Remitter Judgment); and

4. Harvard Nominees Pty Ltd v Nicoletti [2022] FCAFC 179 (Second Appeal Judgment).

2. It will also be necessary to refer to the judgment given in relation to the costs of the proceeding up to and including the Trial Judgment that was published as Harvard Nominees Pty Ltd v Tiller (No 3) [2020] FCA 1054 (First Costs Judgment).

3. The delivery of this judgment has been deferred pending the outcome of an appeal from the Remitter Judgment. That was done at the suggestion of the applicant, Harvard Nominees Pty Ltd, made at a hearing in relation to the costs issues held on 20 June 2022. The two respondents who appeared at the hearing, Giovanni Nicoletti and Damian Bryce, did not oppose it. On 8 November 2022, that appeal was dismissed in the Second Appeal Judgment.

The history of the proceeding in brief

4. The present reasons will assume familiarity with each of the judgments just mentioned. Nevertheless, it is helpful to recap the course of the proceedings at a high level. (In this judgment, defined terms will be used as in my previous judgments.)

5. Harvard brought the proceeding against five respondents based on allegations of misleading or deceptive conduct in breach of s 18 of the Australian Consumer Law (ACL). Those allegations were, however, made only against the first four respondents; the fifth respondent, Felicity...