Elitegold P/L v Australia Fair Shopping Centres P/L

[1994] FCA 962

JUbGMENT No. ...,. 9 6 ~ &

IN THE FEDERAL COURT OF AUSTRALIA ) )

W SOUTH WALES D ISTRICT REGISTRX ) No NG55 of 1992

BETWEEN: UITEGOLD PTY LIMITED

Applicant

&m:	AUSTRALIA FAIR SHOPPING CENTRES
P T L u u a D

Second Respondent

CM HOLDINGS PTY

Fourth Respondent

CM DEVELOPMENTS (OTnDI PTY LTP

Fifth Respondent

First Respondent

(proceedings discontinued)

Third Respondent

(proceedings discontinued)

12 DEC 1994 Sixth Respondent

AUSIRALIA

(application dismissed by

consent )

Seventh Respondent -

(application dismissed by

consent )

cs!mM: HILL J

a!AG%: SYDNEY

LxcED: 16 NOVEMBER 1994

On 28 October last I gave judgment in this matter dismissing the application brought by Elitegold Pty Limited, but declined, at that time, to make any order for costs pending further argument. I said:

"Although the respondents had been successful overall, considerable time was spent at the trial on evidence which went to the issue whether the respondents had contravened s.52 of the act, an issue upon

which Elite has succeeded. I will accordingly stand over the application to a date to be fixed to hear such submissions the parties may wish to make on the questions of costs."

The applicants have drawn my attention to a number

of issues upon which they succeeded and have submitted that,

if the respondents had confined themselves to the issues upon which they ultimately succeeded, only a small fraction of the amount of time would have actually been needed.

The principles upon which costs are to be awarded are not really in dispute. They are dealt with in the well-

known passage from the judgement of Toohey J in Huahes v

n n (1986) ATPR

48,134 where his Honour summarised the relevant decisions to

that point in the following way (at 48,136):

" 1 . Ordinarily, costs follow the event and

a successful litigant receives his costs in the absence of special circumstances justifying some other order. . . .

2. Where a litigant has succeeded only

upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that

portion upon which he has failed. . . .

3. A successful party who has failed on certain issues may not only be deprived of costs of those issues but maybe ordered as well to pay the other party's costs of them. In this sense, 'issue' does not mean a precise issue in the technical pleading sense, but any disputed question

of fact or law. . . . "

His Honour referred also to comments by Jacobs J in

Cretazzo v Lombardi (1975) 13 SASR 4 at 12, touching upon the

desirability or otherwise of determining costs purely by reference to the success or failure of particular issues. Ultimately, the Court, in exerclsing its discretion as to costs, will attempt to do, so far as possible, justice as between the parties. I do not think the present is a case where, in accordance with the applicant's submissions, the Court should proceed to analyse success and failure of each of the parties by reference to the various individual matters that arose for decision in the course of the hearing which extended for some ten days.

However, there is one matter which causes me some concern. I found that the respondents were in breach of their obligations under 6.52 of the Dade Practices Act 1974 (Cth)

( " t h e A c t " ) in making the representation that was lettered "f"

in the ultimate statement of claim, albeit that I found that the representation made did not ultimately act as an inducement to the applicant to enter into the contract to purchase or acquire the lease of the premises known as "Food

Hall 1 " . There have been cases, two of which were cited to

me, in which costs were ordered to follow the event where findings of a breach of 6.52 of the Act were made but the ultimate applications were unsuccessful because of the failure of the applicant to show reliance. The cost orders in these cases were made without discussion.

When making orders in the usual form that the costs follow the event, to some extent it may be relevant to form a view as to the time taken up by an issue such as breach of 6.52 but I would certainly not for a moment suggest that it would be appropriate in every case, or indeed even necessarily in an ordinary case, for an order to be made by way of exception to the rule that the costs follow the event in a case where breach has been found, but reliance was not.

The present case is one where all issues, if I may say so, were hotly contested between the parties. This is particularly so of the issue of breach. It is true that a number of representations were pleaded and only one found proven, but a number of the representations pleaded were ultimately variants of the representation found, with one or more elements differing. I am conscious also that, in a case such as the present, to require the applicant to pay all of the costs of the respondent in respect of the applicant's claim may seem unduly to reward the respondent for success in the litigation when the respondent has denied a breach of the Act, which breach has been proved, albeit that the breach ultimately was found not to be acted upon.

It is difficult to deal with the apportionment of costs in a case such as the present where many issues were interwoven and I take into account, as the respondents submitted, that the representation ultimately proven was only

pleaded at the very last moment so that if any account is to be taken of the applicant's success on the issue of breach, it could only be by reference to the amount of time ultimately at the hearing rather than an order as to overall costs.

In the circumstances of this case, where a considerable time was taken up with the issue of breach and matters such as reasonableness which flowed out of the issue

of breach, I think that it can be said that there is a case

where justice suggests that an order outside the ordinary order would be appropriate. Doing the best I can, it seems to me that approximately one-third of the time at the hearing would have been spent on the issue of breach or matters related to it. In so saying, I acknowledge the difficulty of apportioning time having regard to cross-examination and matters of that kind where issues interacted.

Accordingly, I propose to order the applicant to pay the respondent's costs of the proceedings but limited to seven days of hearing.

I certify that this and the

preceding four ( 4 ) pages

are a true copy of the Reasons

for Judgment herein of his Honour

Mr Justice Hill.

Counsel and Solicitors	SJ Motbey and MW Young
for Applicant:	instructed by Vaughan Barnes
Counsel and Solicitors	JS Wheelhouse instructed by
for Second, Fourth and	Mallesons Stephen JaqUeS
Fifth Respondents:
Dates of Hearing:	16 November 1994
Date Judgment Delivered:	16 November 1994