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IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY
1 QLD G141 of 1986
DIVISION GENERAL ) :
I
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
I
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
"'
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.
:I ' .
"
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 ' I :
suggestion made by MT Byrne P.C., who is senior' counsel for
, . ' ..
i
t , ! l 1 .. Westpac, is as I understand it, that his side should have all the
!
! costs. Hr Dutney, who appears for the applicants, says in effect I
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
I I
t should have the costs of paragraphs 2 and 3 . l
i
i i
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 I
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 l the result the exercise of power of sale on behalf of Westpac is i
i.
held to be unlawful, an interlocutory attempt to restrain it be at I
I I , I the cost of the applicants.
I l I I i'
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_ ! I ! paragraph 2, to some xtent the matter is obscure, but I am I ! L
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.
- * . .. 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
i
Mr. Justice Pincus &P 34- ‘Pisxiate Dated &..fob rqqg
Details
- AGLC
- Eltran Pty Ltd v Westpac Banking Corporation [1988] FCA 636
- Case
- [1988] FCA 636
- Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Eltran Pty Ltd and several other related entities filed a claim against Westpac Banking Corporation and two other respondents. The dispute revolves around the issue of costs incurred in the proceedings, particularly in relation to an interlocutory application. The applicants sought to restrain Westpac from exercising its power of sale over certain properties. Pincus J was tasked with determining the appropriate allocation of costs between the parties.
The central legal issue before the court was the appropriate allocation of costs incurred by the applicants in their unsuccessful attempt to restrain Westpac from exercising its power of sale. The applicants argued that Westpac should bear the costs associated with paragraph 1 of the notice of motion, while they should bear the costs of paragraphs 2 and 3. Westpac, on the other hand, argued that it should be awarded all the costs of the motion. The court had to decide which party should bear the financial burden of the costs associated with the interlocutory application.
Pincus J found that while the applicants' case was stronger in relation to paragraphs 2 and 3, it was inappropriate for them to bear the costs of paragraph 1 if the exercise of power of sale was ultimately deemed unlawful. The judge was uncertain about the necessity of pursuing paragraph 3. To avoid creating difficulties in settling the costs, Pincus J decided to make a limited order that Westpac would bear 75% of the total costs of the notice of motion. The judge believed that discriminating between the paragraphs would be inconvenient and potentially create unnecessary complications.
The court ordered that the applicants pay 75% of the first respondent's costs of and incidental to the notice of motion, to be taxed. The decision reflects the court's consideration of the relative strengths of the parties' positions and its desire to avoid creating unnecessary complications in the allocation of costs.
The central legal issue before the court was the appropriate allocation of costs incurred by the applicants in their unsuccessful attempt to restrain Westpac from exercising its power of sale. The applicants argued that Westpac should bear the costs associated with paragraph 1 of the notice of motion, while they should bear the costs of paragraphs 2 and 3. Westpac, on the other hand, argued that it should be awarded all the costs of the motion. The court had to decide which party should bear the financial burden of the costs associated with the interlocutory application.
Pincus J found that while the applicants' case was stronger in relation to paragraphs 2 and 3, it was inappropriate for them to bear the costs of paragraph 1 if the exercise of power of sale was ultimately deemed unlawful. The judge was uncertain about the necessity of pursuing paragraph 3. To avoid creating difficulties in settling the costs, Pincus J decided to make a limited order that Westpac would bear 75% of the total costs of the notice of motion. The judge believed that discriminating between the paragraphs would be inconvenient and potentially create unnecessary complications.
The court ordered that the applicants pay 75% of the first respondent's costs of and incidental to the notice of motion, to be taxed. The decision reflects the court's consideration of the relative strengths of the parties' positions and its desire to avoid creating unnecessary complications in the allocation of costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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