Eltran Pty Ltd v Westpac Banking Corporation

[1988] FCA 636

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IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1 QLD G141 of 1986

DIVISION GENERAL ) :

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BETWEEN:  ELTRAN PTY LII?ITED

First Applicant

BETWEEN:  PREPIAYDENA PTY LTD

Second Applicant

BETWEEN:  CRESWELL PLACE PTY LTD

Third Applicant

I BETWEEN: ADAH'S ROW PTY LTD

Fourth Applicant

BETWEEN:  CARTER LANE PTY LTD

Fifth Applicant

BETWEEN:  BERNARD STREET PTY LTD

Sixth Applicant

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BETWEEN:  ORACA PTY LTD

Seventh Applicant

BETWEEN :  BINON PTY LTD

Eighth Applicant

BETWEEN:  TREVOR RONALD KING

Ninth Applicant

AND:  WESTPAC BANKING CORPORATION

First Respondent

AND: JOHN GEOFFREY ALLPASS and

ALAN RAP-=EL TUTTLE

Second Respondents

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PIINUTES OF ORDER

PINCUS ORDER: MAKIN JUDGE J.

DATE OF ORDER:  2 4 OCTOBER 1988

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WHERE ImDE : BRISBANE

THE COURT ORDERS THAT:

1.    the applicants pay the first respondent's costs of and incidental to the notice of motion, to the extent of 75% thereof, to be taxed.

- NOTE :

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1 QLD G141 of 1986
GENERAL DIVISION	1

BETWEEN:  ELTRAN PTY LII4ITED

First Applicant

BETWEEN:  PRENAYDENA PTY LTD

Second Applicant

BETWEEN:  CRESWELL PLACE PTY LTD

Third Applicant

BETWEEN:  ADAM'S ROW PTY LTD

Fourth Applicant

BETWEEN:  CARTER LANE PTY LTD : :

Fifth Applicant	, .
, .
1 :

BETWEEN:  BERNARD STREET PTY LTD

Sixth Applicant

BETWEEN:  ORACA PTY LTD

Seventh Applicant

BETWEEN:  BINON PTY LTD

Eighth Applicant

BETWEEN:  TREVOR RONALD KING

Ninth Applicant

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AND :  WESTPAC BANKING CORPORATION

First Respondent

AND :	JOHN GEOFFREY ALLPASS and	!
ALAN RAPHAEL TUTTLE	._

Second Respondents

PINCUS J. 21 OCTOBER 1988

EX TEMPORE REASONS FOR JUDGMENT

In this matter a dispute has arisen as to costs. The	i '
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suggestion made by MT Byrne P.C., who is senior' counsel for

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Westpac, is as I understand it, that his side should have all the

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!	costs.	Hr Dutney, who appears for the applicants, says in effect
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l	that the appropriate order is that Westpac should have the costs
i	of paragraph 1 of the notice of motion, and that the applicants l

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t should have the costs of paragraphs 2 and 3 .

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l	As to the costs of paragraph	1, it is only	with some
i	doubt that I reach the conclusion that the concession made by	Mr	b
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Dutney is correct. The practice seems to vary depending on the

i	I	strength of the case, but it is perhaps inappropriate that if in
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the result the exercise of power of sale on behalf of Westpac is
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held to be unlawful, an interlocutory attempt to restrain it be at I

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the cost of the applicants.

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That is, had it not been for the concession made in that

l respect, I might have been inclined to make the costs of paragraph 7

i	1 the	costs of Westpac	in the	proceedings.	As to	the	costs	of	I_
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!	paragraph 2, to	some	xtent	the	matter	is obscure,	but	I am	I
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I inclined to think that the applicants' case is better there. A s .. l

i to the costs of paragraph 3 , I do not really understand why ..

paragraph 3 was pursued. I '

In the circumstances, what I propose to do is to make a .(

limited order with respect to the whole costs of the notice of

motion in favour of Westpac, without discriminating between . ,I.

paragraphs 1, 2 and 3 . It would be an inconvenient course so to

discriminate, thereby creating difficulties in settling the costs .~

or having them resolved by a registrar. However, I propose that I .

Westpac will have only three-quarters of those costs.

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3 .     -

I will make an ord .er, then, as t the cos :ts of and

incidental to the notice of motion, that Westpac’s costs be taxed

and paid, to the extent of	75 per cent thereof, by the applicants.
f certlfy that this and the 2- preceding
pages are a true copy of the reasons for
ludgrrent herein of His-Honour

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Mr. Justice Pincus &P	34-
‘Pisxiate
Dated &..fob	rqqg