Arlone Pty Ltd v Teller Properties Pty Ltd

[1995] FCA 1192

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NEW SOUTH WAJIES DISTRICT REGISTRY ) No. G324 of 1993

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GENERAL DIVISION 1

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 in each case the figure is likely to be something in the order of $25,000.

There is, however, force in Mr Green's submission that in relation to the cross-claim, the basic carriage of it lay with Arlone; not with Hawcroft. I think that should be reflected in the order of the kind sought by Arlone and Hawcroft.

I think it is reasonable in the circumstances that portion of the judgment sum in favour of Teller should be paid by Arlone and Hawcroft, into Court, pending the result of taxation, rather than the whole amount being payable directly to Teller at this stage.

The Court is not in a position to reach any accurate conclusion as to figures of costs, but it seems to me that the figure of $20,000 nominated by Mr Moore's client is not unreasonable. This sum reflects the adjustment made necessary by the fact that on the first day of the hearing an order for costs was made by consent in favour of Teller against the Arlone interests when the initial claim by Arlone against Teller was abandoned. I think the figure in favour of Hawcroft should be, however, somewhat less for the reason given above and I think a figure in the vicinity of $15,000 would be more appropriate.

Giving leave to the Arlone interests to file in court a notice of motion, dated yesterday returnable instanter, and hearing submissions to the same effect from the Hawcroft interests by motion from the bar table I make Orders 2 and 3 as sought in the notice of notion of the applicants. I make the same orders in respect of the motion of the Hawcroft interests, but substituting the figure of $15,000 for $25,000.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated: 21 July

Counsel for the Applicants	Mr G A Moore
Solicitors for the Applicants :	A B Robinson Creais
Counsel for the First and
Third Respondents	Mr B Green
Solicitors for the First and
Third Respondents	Emerys Law Firm
Counsel for the Second and
Fourth Respondents	Mr P Taylor
Solicitors for the Second
and Fourth Respondents	Rocklif f S
Date of Hearing	2 1 July 1995
Date of Judgment	2 1 July 1995