Daikyo (North Queensland) Pty Ltd, Hazama, Sawai v KKL Investments Pty Ltd

[1995] QCA 146

IN THE COURT OF APPEAL	[1995] QCA 146
SUPREME COURT OF QUEENSLAND

Appeal No. 261 of 1993.

Brisbane

[KKL Investments P/L v. Daikyo (Nth Qld) P/L & Ors.]

BETWEEN:

KKL INVESTMENTS PTY LTD

Respondent (Plaintiff)

AND:

DAIKYO (NORTH QUEENSLAND) PTY LTD

First Appellant (First Defendant)

- and -

MASAO HAZAMA

Second Appellant (Second Defendant)

- and -

YUICHI SAWAI

Third Appellant (Third Defendant)

- and -

TATSUHIKO TANAKA

Fourth Appellant (Fourth Defendant)

- and -

SONTAM PTY LTD

Fifth Appellant (Fifth Defendant)

__________________________________________________________________
____

Davies J.A. Pincus J.A. Cullinane J.

__________________________________________________________________

____

Judgment delivered 24/2/1995

Further Orders delivered 28/04/1995

Orders of the Court
__________________________________________________________________
____
The additional orders are as follows:

1.         Delete order no. 6 pronounced on 24 February 1995 and add:

6.	Declare that the appellants are entitled to money held by Omega Development Corporation Pty Ltd in respect of rentals on the properties referred to in paragraph 5 of the statement of claim so far as such rentals relate to periods after 29 June 1993.
7.	The respondent to pay to the appellants two-thirds of the appellants' costs of and incidental to the proceedings at first instance.
8.	The proceedings are remitted to the Trial Division to enable the parties to apply there for any further orders which may prove to be necessary in the course of implementing this Court's orders.

__________________________________________________________________

____

CATCHWORDS:	COSTS OF APPEAL AND TRIAL - certain findings at first instance undisturbed - appellants completely changed their position between the trial and the argument on appeal.
Counsel:	Mr P A Keane Q.C. with him Mr S L Doyle for the appellants. Mr I Hanger Q.C. with him R Perry for the respondent.
Solicitors:	Clayton Utz for the appellants. Gadens Ridgeway for the respondent.

Hearing date:23 September 1994.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 261 of 1993.

Brisbane

Before Davies J.A. Pincus J.A. Cullinane J.

[KKL Investments P/L v. Daikyo (Nth Qld) P/L & Ors.]

BETWEEN:

KKL INVESTMENTS PTY LTD

Respondent (Plaintiff)

AND:

DAIKYO (NORTH QUEENSLAND) PTY LTD

First Appellant (First Defendant)

- and -

MASAO HAZAMA

Second Appellant (Second Defendant)

- and -

YUICHI SAWAI

Third Appellant (Third Defendant)

- and -

TATSUHIKO TANAKA

Fourth Appellant (Fourth Defendant)

- and -

SONTAM PTY LTD

Fifth Appellant (Fifth Defendant)

REASONS FOR FURTHER ORDERS - THE COURT

Judgment delivered 24/2/1995

Further Orders delivered 28/04/1995

On 24 February the Court published reasons for judgment in this appeal, together with orders to be made in lieu of those made below. The parties were, however, given an opportunity to make written submissions as to the form of the orders,

and these have been received.

Apart from the question of costs of the trial, the submissions made raised only

one question about the proposed orders. The appellants contended that a declaration

should be made as to their entitlement to moneys held by Omega Development

Corporation Pty Ltd in respect of rentals received relating to periods after 29 June 1993

and that is not resisted.

With respect to the costs of the trial, the respondent has drawn our attention to a

number of circumstances which it says should be taken into account. It points to the fact

that its statement of claim sought among other relief, an account, and that one is to be

taken; that although it has in the end failed in its claim for relief under s. 52 of the Trade

Practices Act 1974, the primary judge's finding that the appellants' agent engaged in

misleading conduct has not been disturbed; that the appellants completely changed

their position between the trial and the argument on appeal, with respect to the question

of waiver under cl. 2(f) of the deeds; and it says that for these and certain lesser

reasons the appellants should pay the costs of the trial.

Clearly, the consequence of the proceedings has been in substance success for

the appellants, but the respondents should be accorded some substantial relief in

relation to costs, because of the matters to which our attention has been drawn.

The additional orders are as follows:

1.         Delete order no. 6 pronounced on 24 February 1995 and add:

6. Declare that the appellants are entitled to money held by Omega Development Corporation Pty Ltd in respect of rentals on the

properties referred to in paragraph 5 of the statement of claim so

far as such rentals relate to periods after 29 June 1993.

7.         The respondent to pay to the appellants two-thirds of the

appellants' costs of and incidental to the proceedings at first

instance.

8.         The proceedings are remitted to the Trial Division to enable the

parties to apply there for any further orders which may prove to be

necessary in the course of implementing this Court's orders.