Arlone Pty Ltd v Teller Properties Pty Ltd - [1995] FCA 1192

)

NEW SOUTH WAJIES DISTRICT REGISTRY )

No. G324 of 1993

)

GENERAL DIVISION

BETWEEN

ARLONE PTY LIMITED

First Applicant

JAMES WAS=

Second Applicant

POBERT NORMAN BRADBERY

~hird

~pplicant

AND :

TELLER PROPERTIES PTY

LIMITED

First Respondent

HAWCROFT HOLDINGS PTY

LIMITEQ

Second Respondent

TIBOR BALOG

Third Respondent

EDWARD HAWCROFT

Fourth Respondent

21 JULY, 1995

=SONS

FOR JUDGMENT

LOCKHART J.

I gave judgment most recently in this matter on 14 July last and directed the parties to bring in short minutes of order to give effect to the somewhat complex and detailed arrangements necessary for the judgment. The parties have prepared short minutes; they differ as to the question of costs. The Arlone interests and the Hawcroft interests seek, in accordance with my reasons, an order that Teller pay two- thirds of the costs of the Arlone and Hawcroft interests on Teller's cross-claim and otherwise there be no order as to costs.

Teller seeks an order that the costs of its cross-claim against the Arlone interests and the Hawcroft interests should be as I have indicated, but that otherwise Teller's costs should be paid by the other parties. The reasoning of counsel for Teller is that the case took some 10 days, of which approximately seven days (that is an accurate estimate) were devoted to issues other than Teller's cross-claim. Teller says that since it was in Court, it had really no practical option but to remain in Court and to incur costs accordingly, albeit that it was not directly involved in the litigation consumed by those days. It also says that it has won on the guarantee question and that, of course, was an issue raised primarily by Teller's own cross-claim.

On the first day of the hearing the case that was raised by the Arlone interests against Teller was abandoned and was the subject of consent orders including orders as to costs in Teller's favour.

Doing the best I can, and I realize that orders for costs in these circumstances are always a little arbitrary, in my view the proper order for costs is, as in accordance with the short minutes prepared by Mr Moore of counsel, namely, that the costs of Teller's cross-claim should be as in accordance with order 2. There should be no order as to costs otherwise.

There is one remaining matter in dispute between the parties concerning the question of costs and the judgment in favour of Teller on its cross-claim.

The Arlone interests seek an order that $25,000 of the judgment sum should be paid by them into Court, pending the completion of taxation of costs in the matter, which will result in the Costs Certificate in favour of the Arlone interests.

A similar order is sought by the Hawcroft interests. The reason behind the orders is simply that, although Teller has the benefit of a verdict in the sum of some $87,000, there will be a liability of Teller to both Arlone and Hawcroft in costs. The evidence indicates that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] FCA 1192
Decision Date: 14 Jul 1995

CaseChat Overview and Summary

Arlone Pty Ltd v Teller Properties Pty Ltd was a case heard in the New South Wales District Registry of the Federal Court of Australia. The dispute involved several parties: Arlone Pty Ltd, James Walsh, and Robert Norman Bradbery, who were the applicants, and Teller Properties Pty Ltd, Hawcroft Holdings Pty Ltd, Tibor Balog, and Edward Hawcroft, who were the respondents. The case centred on issues of costs and taxation following a complex litigation process involving cross-claims and consent orders.

The primary legal issue the court had to decide was the allocation of costs between the parties, particularly regarding the costs associated with Teller's cross-claim. The applicants sought an order that Teller should bear two-thirds of their costs on the cross-claim and that no other costs should be ordered. Conversely, Teller argued that it should bear its own costs of the cross-claim but that the remaining costs should be borne by the other parties. The court had to balance these arguments and decide on a fair and equitable allocation of costs, given the unique circumstances of the case.

The court, Justice Lockhart, examined the arguments and evidence presented by both sides. It determined that the costs of Teller's cross-claim should be allocated as per the short minutes prepared by Mr. Moore of counsel, with no other costs being ordered. Additionally, the court addressed the applicants' request to pay a portion of the judgment sum into court pending the taxation of costs. The court considered it reasonable that Arlone and Hawcroft should pay part of the judgment sum into court, given the likelihood of significant costs to be incurred by Teller. The court concluded that $20,000 should be paid by Arlone and $15,000 by Hawcroft into court, pending the outcome of the costs taxation.

In summary, the court ordered that Teller bear the costs of its cross-claim, with no other costs being awarded. Arlone and Hawcroft were ordered to pay $20,000 and $15,000 respectively into court pending the taxation of costs. This decision reflected the court's assessment of the fair distribution of costs in the context of the litigation.

Orders