Council of the City of Sydney v Goldspar Australia Pty Limited

[2004] FCA 889

FEDERAL COURT OF AUSTRALIA

Council of the City of Sydney v Goldspar Australia Pty Limited [2004] FCA 889

COUNCIL OF THE CITY OF SYDNEY v GOLDSPAR AUSTRALIA PTY LIMITED (ACN 002 705 991) and DOUGLAS RAWSON-HARRIS
N 728 OF 2002

GYLES J
18 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 728 OF 2002

BETWEEN:	COUNCIL OF THE CITY OF SYDNEY APPLICANT
AND:	GOLDSPAR AUSTRALIA PTY LIMITED FIRST RESPONDENT
DOUGLAS RAWSON-HARRIS SECOND RESPONDENT

JUDGE:	GYLES J
DATE OF ORDER:	18 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The respondents pay 25 per cent of the applicant's costs of the proceeding after 21 October 2002.

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	N 728 OF 2002

BETWEEN:	COUNCIL OF THE CITY OF SYDNEY APPLICANT
AND:	GOLDSPAR AUSTRALIA PTY LIMITED FIRST RESPONDENT
DOUGLAS RAWSON-HARRIS SECOND RESPONDENT

JUDGE:	GYLES J
DATE:	18 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The question of costs is not easy.  The applicant has succeeded in obtaining relief on this hearing which goes beyond the relief that had been obtained at the previous stage of the proceeding.  Therefore, prima facie it is entitled to the general costs of the action thereafter.  Those costs could have been avoided if the respondents had not defended the claims upon which the applicant succeeded.  So, the respondents get no credit from that.

2. On the other hand, the respondents are on firm ground when they submit that the factual issues that occupied most of the time of this hearing were rectification and related arguments that were an endeavour by the Council to establish a basis for remedies or relief in relation to the Issue A drawings.  That endeavour failed, and undoubtedly took up a significant part of the time of the hearing.  It is a very difficult matter to assess quite how much of the time was so occupied.  The solicitor for the respondent has attempted to do so but, as counsel for the applicant submits, it is a very complex task.

3. Under all the circumstances it seems to me that the applicant is entitled to the general costs of this matter after 21 October 2002.  I do not think that in this case one issue can be separated out and costs awarded the other way in respect of it.  However, there must be a very significant moderation of the amount of the costs recovered by the applicant.  Although fixing of that amount is, to an extent, arbitrary, having in mind my knowledge of the case it seems to me that the appropriate order is that the respondents pay 25 per cent of the applicant's costs of the proceeding after 21 October 2002. 

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            7 July 2004

Counsel for the Applicant:	RJ Ellicott QC, DB Studdy
Solicitor for the Applicant:	PricewaterhouseCoopers Legal
Counsel for the First and Second Respondents:	JV Nicholas SC, D Robertson
Solicitor for the First and Second Respondents:	Michael Osborne & Associates
Date of Hearing:	18 June 2004
Date of Judgment:	18 June 2004