Adelaide Petroleum Nl & Ors. Poseidon Ltd

[1990] FCA 732

*. , ,

732.  70 --.

JUDGMENT NO. .....-.... /...--.-

Not For Distribution

C A T C H W O R D S

COSTS - order for costs - applicants partly successful - single defence by multiple respondents - no substantial

additional costs incurred by successful respondents.

ADELAIDE PETROLEUM NL AND OTHERS v. POSEIDON LIMITED AND
OTHERS
POSEIDON LIMITED AND OTHERS v. ADELAIDE PETROLEUM NL AND
OTHERS

No. WAG 115 of 1988

FRENCH J.

PERTH

13 December 1990

IN THE FEDERAL COURT	)
OF AUSTRALIA	)
WESTERN AUSTFUGIA	1
DISTRICT REGISTRY	j
GENERAL DIVISION	1 No. WAG 115 of 1988
B E T W E E N :	ADELAIDE PETROLEUM NL AND OTHERS

Applicants

and

POSEIDON LIMITED AND OTHERS

Respondents

AND

POSEIDON LIMITED AND OTHERS

Cross-Claimants

and

ADELAIDE PETROLEUM NL AND

OTHERS

Cross-Respondents

MINUTE OF ORDER

JUDGE MAKING ORDER:	FRENCH J.
DATE OF ORDER:	13 DECEMBER 1990
WHERE MADE:	PERTH

THE COURT ORDERS THAT: 

1.        The first and sixth respondents pay the applicants' costs of the action.

The first and second respondents pay the applicants' costs of the cross-claim.

The respondents have liberty to apply within sixty

(60) days for a ruling on the questlon of stamp duty

if that should now be necessary.

NOTE: Settlement and entry of Orders is dealt with

in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT	)
OF AUSTRALIA	1
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	j
GENERAL DIVISION	1 No. WAG 115 of 1988
B E T W E E N :	ADELAIDE PETROLEUM NL AND OTHERS

Applicants

and

POSEIDON LIMITED AND OTHERS

Respondents

and

POSEIDON LIMITED AND OTHERS

Cross-Claimants

and

ADELAIDE PETROLEUM NL AND

OTHERS

Cross-Respondents

CORAM:	FRENCH J.
13 December 1990

SUPPLEMENTARY REASONS FOR JUDGMENT ON COSTS AND STAMP DUTY

Upon delivery of judgment in this action, I allowed the parties 14 days to file written submissions on the question of appropriate costs orders and to apply within 7 days thereafter for liberty to make oral submissions if required. I also gave 14 days to file written submissions on the question of the payment of stamp duty and fines in relation to the heads of agreement. In the event the time for filing the written submissions was extended by a further 14 days.

On the matter of costs, the applicants submit that the respondents maintained what was, in effect, a single defence and that the respondents against whom they failed were necessary parties to the case. It was submitted that the successful respondents were not likely to have incurred any separate costs and that no order should be made in their

favour .

The second to fifth respondents, on the other hand, seek an order for costs in their favour.

I accept that the successful respondents were unlikely in this case to have incurred significant additional costs over and above those necessarily incurred by the first and sixth respondents in the conduct of their defence. The case of all respondents was conducted as one and, in my opinion, it would be an unrealistic exercise to try to assign some part of the costs to the successful respondents. In the circumstances I propose to make the following orders:

1.   The first and sixth respondents pay the applicants' costs of the action.

2.   The first and second respondents pay the applicants' costs of the cross-claim.

The other outstanding question related to the
payment of stamp duty on the heads of agreement document which

was at the centre of the litigation. Junior counsel for the respondents, M r Gilmour, had given an undertaking that stamp duty would be paid and this was done. In the event a fine was imposed for late lodgment. It was contended for the respondents that their undertaking to pay "duty" did not extend to the fine. The parties were in separate litigation in the District Court on the question of who was iiable as between themselves to pay the duty.

In the closing stages of the case, counsel for the applicants, who relied upon the agreement,.undertook to pay the penalty if I were of the opinion that it was required to be paid as a condition of receiving the document into evidence. If on the other hand I were of the opinion that N r Gilmour's undertaking extended to the payment of the penalty, then the respondents undertook to make that payment. The question of the liability inter partes would await the outcome of the proceedings in the District Court.

In the end, it appears the point is now moot. The

applicants in their submissions have informed the Court that the duty has been refunded or agreed to be refunded under s.15A of the Stamp Act 1921 and that there is no current demand for the payment of the fine. In the circumstances it does not appear that the point on which I reserved arises for determination and I will make no ruling in that regard. If the position is not as outlined in the applicants' submission, the respondents will have 60 days in which to apply for a

ruling.

I certify that this and the preceding

three (3) pages are a true copy of the
Reasons for Judgment of his Honour

Justice French.

Associate: /w~~-.I.u' Date: 13 /WO

Solicitors for the Applicants: Robinson Cox

Solicitors for the Respondents: Claudio Russo Shaw

Date of Judgment: 13 December 1990