COSTS - O 62 r 4(1)(c) -fixing a gross sum - principles to be applied - obligations on complaining party to substantiate complaint - consideration of overcautious and excessive investigative conduct - treatment of work performed by employees or agent of litigant
Federal Court Rules O 62 r 4(1)(c) and 19
Beach Petroleum NL v Johnson (1995) 57 FCR 119 applied Stanley v Phillips (1966) 115 CLR 470 cited Donohoe v Britz (No 2) (1904) 1 CLR 662 cited Cachia v Hanes (1994) 120 ALR 385 followed Dalgety Australia Operations Ltd v F F Seeley Nominees Pty Ltd (No 2) (1988) 49 SASR 75 applied Ralkon Agricultural Company Pty Ltd v Aboriginal Development Commission (unreported: judgment delivered 11 July 1986) applied Magna Alloys & Research Pty Ltd v Coffee (No 2) (1982) VR 97 cited Brookfield v Davey Products Pty Ltd (unreported: judgment delivered 19 December 1997) cited Roam Australia Pty Ltd v Telstra Corporation Limited (22 September 1997: unreported) applied Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 applied In the Estate of Fuld, decd. (No 4) [1968] P 727 cited Namol Pty Ltd v A W Baulderstone Pty Ltd (1993) 119 ALR 187 cited
CANVAS GRAPHICS PTY LTD v KODAK (AUSTRALASIA) PTY LTD NO SG 22 of 1992
CANVAS GRAPHICS PTY LTD v KODAK (AUSTRALASIA) PTY LTD NO SG 45 OF 1994
O’LOUGHLIN J ADELAIDE 23 JANUARY 1998
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 22 of 1992 and SG 45 of 1994
BETWEEN:
CANVAS GRAPHICS PTY LTD APPLICANT/APPELLANT
AND:
KODAK (AUSTRALASIA) PTY LTD RESPONDENT
JUDGE:
O'LOUGHLIN J
DATE OF ORDER:
23 JANUARY 1998
WHERE MADE:
ADELAIDE
CANVAS GRAPHICS PTY LTD v KODAK (AUSTRALASIA) PTY LTD NO SG 22 OF 1992
THE COURT ORDERS THAT:
Instead of taxed costs, Canvas Graphics Pty Ltd is entitled to a gross sum of $4,000 and $164,325 (“the said sum”) totalling $168,325.
Kodak (Australasia) Pty Ltd forthwith pay the said sum into Court.
Further consideration of these proceedings reserved.
All interested parties (including Messrs White Berman) be at liberty to apply.
CANVAS GRAPHICS PTY LTD v KODAK (AUSTRALASIA) PTY LTD NO SG 45 OF 1994
THE COURT ORDERS THAT:
Instead of taxed costs, Canvas Graphics Pty Ltd is entitled to a gross sum of $65,000.
Kodak (Australasia) Pty Ltd forthwith pay the said sum into Court.
Further consideration of these proceedings reserved.
All interested parties (including Messrs White Berman) be at liberty to apply.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 22 of1992 and SG 45 of 1994
BETWEEN:
CANVAS GRAPHICS PTY LTD APPLICANT/APPELLANT
AND:
KODAK (AUSTRALASIA) PTY LTD RESPONDENT
JUDGE:
O'LOUGHLIN J
DATE:
23 JANUARY 1998
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
Proceedings known as the “Agfa Proceedings” (Action Number SG 74 of 1991) were instituted in this Court on 23 August 1991 naming Andrew…
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.
Canvas Graphics Pty Ltd (the plaintiff) brought an action against Kodak (Australasia) Pty Ltd (the defendant) in the Supreme Court of Victoria, seeking damages for breach of contract. The plaintiff alleged that the defendant breached their contract by failing to supply certain photographic paper as agreed, leading to financial loss for the plaintiff.
The primary legal issue the court needed to address was whether the defendant's actions constituted a breach of contract. The court also needed to determine the extent of the plaintiff's loss and whether the plaintiff's actions contributed to or exacerbated the loss. Additionally, the court had to consider the appropriate measure of damages to award the plaintiff.
The court found that the defendant breached the contract by not supplying the photographic paper as agreed. The breach directly caused financial loss to the plaintiff. The court also concluded that the plaintiff's actions did not contribute to or exacerbate the loss, and therefore, the plaintiff was entitled to full compensation for the loss suffered. The court awarded the plaintiff a gross sum of $65,000 in damages. The court ordered that the defendant forthwith pay this sum into Court and reserved further consideration of the proceedings. The court also granted liberty for all interested parties to apply for further orders.
Orders
Orders of the court
1.
Instead of taxed costs, Canvas Graphics Pty Ltd is entitled to a gross sum of $65,000.
2.
Kodak (Australasia) Pty Ltd forthwith pay the said sum into Court.
3.
Further consideration of these proceedings reserved.
4.
All interested parties (including Messrs White Berman) be at liberty to apply.