Barry Muller Enterprises Pty ltd (ACN 009 991 628) v Family Assets Pty Ltd (ACN 009 931 757)

[1995] FCA 900

IN THE FEDERAL COURT OF AUSTRALIA )No. QG 167 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:  BARRY MULLER ENTERPRISES PTY. LTD.
                  (ACN 009 991 628)

Applicant

AND:     FAMILY ASSETS PTY. LTD.

(ACN 009 931 757)

Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:         Drummond J
DATE OF ORDER:              9 November, 1995
WHERE MADE:                 Brisbane

THE COURT ORDERS THAT:

1. The applicant pay to the respondent the respondent's costs of and incidental to the application for interlocutory relief, limited to such costs as have been thrown away by the applicant's decision not to proceed with the application.

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

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 167 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:  BARRY MULLER ENTERPRISES PTY. LTD.
                  (ACN 009 991 628)

Applicant

AND:     FAMILY ASSETS PTY. LTD.

(ACN 009 931 757)

Respondent

Coram:    Drummond J
Date:     9 November, 1995
Place:    Brisbane

REASONS FOR JUDGMENT

The matter for decision this morning is whether the respondent should have its costs of an application for an interlocutory injunction, made by the applicant, but which the applicant has, in effect, abandoned.  The proceedings, including the claim for the interlocutory relief, were instituted by the applicant against a background of some delay.  The matter of concern to the applicant, which runs a green grocery business in the respondent's shopping centre, is the respondent's intention to allow a major tennant, Franklins, to greatly expand the green grocery operations it runs in its supermarket in the centre.

The position is that the applicant has known of the respondent's plans and Franklins' plans for a very
considerable period of time.  But as I say it, only instituted the proceedings quite late in the day.  The respondent, in accordance with directions I gave some little time ago to get the interlocutory hearing ready for trial, filed its material on 1 November, 1995.  It was only yesterday, however, that the applicant indicated that it did not intend to pursue the claim for interlocutory relief.  The applicant, in explaining why it was not pursuing its claim for interlocutory relief, in effect conceded that it recognised, as a result of having access to the respondent's material, that it was highly unlikely it would obtain the interlocutory injunction, because considerations of convenience were very likely to be found by a court to favour the refusal of that interlocutory relief.  That seems to me, on my understanding of the case, to be an entirely realistic view for counsel to have taken.

However, the position does not seem to me to have been radically explicated by delivery by the respondent of its material.  So far as the applicant's likely understanding of the impact of an interlocutory injunction is granted on third party rights is concerned, the applicant seems to me to be very likely to have been well aware of the nature of the disruption that the interlocutory injunction, if granted, would cause to third parties, notably to Franklins' plans, before ever having access to the material recently filed.

It seems to me, from the circumstances of this case, that the applicant should always have been aware of the great difficulties it was facing for that particular reason.  I have already referred to the general background involving some delay on the part of the applicant instituting proceedings, and to the other element of delay constituted by the time that passed between receipt of the respondent's material and the applicant's indication to the respondent of its abandonment of its claim for interlocutory relief.  It seems to me, in these circumstances, that the respondent is entitled to some order for costs now in respect of the abandoned interlocutory application.

It is common ground that a good deal, but by no means all, of the work that the respondent has done in preparation for the interlocutory hearing will not need to be duplicated in preparing for trial.  The order I therefore propose to make is an order that the applicant pay to the respondent such of the respondent's costs of and incidental to the application for interlocutory relief as have been thrown away by the applicant's decision not to pursue that claim for interlocutory relief.

I certify that this and the preceding
two pages are a true copy of the
reasons for judgment herein of the
Honourable Justice Drummond.

Associate:

Date:        9 November, 1995