Aristocrat Technologies Australia Pty Limited (ACN 001 660715) v D.A.P. Services (Kempsey) Pty Limited (in liquidation)(ACN 055 803 542) (No. 2)

[2007] FCAFC 90

FEDERAL COURT OF AUSTRALIA

Aristocrat Technologies Australia Pty Limited (ACN 001 660 715) v D.A.P. Services (Kempsey) Pty Limited (in liquidation) (ACN 055 803 542) (No. 2)
[2007] FCAFC 90

ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED (ACN 001 660 715) AND ANOR v D.A.P. SERVICES (KEMPSEY) PTY LIMITED (IN LIQUIDATION) (ACN 055 803 542) AND ORS
NSD 712 OF 2006

BLACK CJ, JACOBSON AND RARES JJ
12 JUNE 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 712  of  2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED (ACN 001 660 715)
First Appellant/First Cross-respondent

ARISTOCRAT INTERNATIONAL PTY LIMITED
(ACN 000 148 58)
Second Appellant/Second Cross-respondent

AND:

D.A.P SERVICES (KEMPSEY) PTY LIMITED (IN LIQUIDATION) (ACN 055 803 542)
First Respondent

DAVID ALLAN PARRY
Second Respondent/First Cross-appellant

RHONDA DENISE PARRY
Third Respondent/Second Cross-appellant

JUDGES:	BLACK CJ, JACOBSON AND RARES JJ
DATE OF ORDER:	12 JUNE 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The second and third respondents pay 70% of the appellants’ costs of the appeal.

2. The cross-appeal is dismissed.

3. The costs of the cross-appeal to be costs in the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 712 of 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED (ACN 001 660 715)
First Appellant/First Cross-respondent

ARISTOCRAT INTERNATIONAL PTY LIMITED
(ACN 000 148 58)
Second Appellant/Second Cross-respondent

AND:

D.A.P SERVICES (KEMPSEY) PTY LIMITED (IN LIQUIDATION) (ACN 055 803 542)
First Respondent

DAVID ALLAN PARRY
Second Respondent/First Cross-appellant

RHONDA DENISE PARRY
Third Respondent/Second Cross-appellant

JUDGES:	BLACK CJ, JACOBSON AND RARES JJ
DATE:	12 JUNE 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1. We have considered the parties’ written submissions on costs.  We do not consider that it is appropriate to disturb the costs orders made at first instance because, in substance, Aristocrat had a sufficient measure of success on the appeal to maintain the costs ordered below.

2. As to the appeal, Aristocrat does not seek the usual costs order made against a company in liquidation.  Accordingly, we do not propose to make any order in respect of the costs of the appeal against the corporate respondent.

3. Although Aristocrat obtained an increased amount of damages against Mr Parry, the level of its success was somewhat less than it had sought.  On the other hand, whilst Mrs Parry’s damages were reduced to a nominal sum, she and Mr Parry were jointly represented and each joined in the cross-appeal on which they were unsuccessful.

4. In our view, it is therefore appropriate to determine the costs to be borne by Mr and Mrs Parry together without seeking to make artificial distinctions between their successes and failures on particular issues.  Nevertheless, it is necessary to balance against their overall loss the fact that Aristocrat was not entirely successful.

5. Taking an overall view of the result of the appeal, it seems to us that a proper exercise of our discretion is to order Mr and Mrs Parry to pay 70% of the costs.

6. In our view therefore, the appropriate costs orders are:

   (1)The second and third respondents pay 70% of the appellants’ costs of the appeal.

   (2)The cross-appeal is dismissed.

   (3)The costs of the cross-appeal to be costs in the appeal.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, Justices Jacobson and Rares.

Associate:

Dated:       12 June 2007

Counsel for the Appellant:	Mr R Cobden SC and Mr N R Murray
Solicitor for the Appellant:	Baker & McKenzie
Counsel for the Respondent:	Mr J Ireland QC and Mr D Accoto
Solicitor for the Respondent:	Gollottas Solicitors
Date of Submissions:	10 April 2007
Date of Judgment:	12 June 2007